Central Administrative Tribunal - Allahabad
Mohd. Moin vs Union Of India Through The Secretary on 31 October, 2011
(OPEN COURT) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD (THIS THE 31TH DAY OF OCTOBER, 2011) PRESENT: HONBLE MR. JUSTICE S.C. SHARMA, MEMBER-J HONBLE MR. D. C. LAKHA, MEMBER-A ORIGINAL APPLICATION NO. 704 OF 2005 (U/s, 19 Administrative Tribunal Act.1985) Mohd. Moin, aged about 61 years, son of late Maqbool Hussain, Q. No. 4/2, Fahimabad Coloney, KANPUR NAGAR. . . . . . . . .Applicant By Advocate: Shri R.K. Shukla. Versus 1. Union of India through the Secretary, Ministry of Defence & Supplies, New Delhi. 2. The Secretary, Ordnance Factory Board, 10-A, Shaheed Khudi Ram Bose Road, KOLKATA-1. 3. The General Manager, Field Gun Factory, Kalpi Road, KANPUR. 4. The Principal Controller of Defence Accounts (Pension) Draupadi Ghat Road, ALLAHABAD. . . . . . . . . . Respondents By Advocate: Shri Anil Dwivedi. O R D E R
(DELIVERED BY:- HONBLE MR. JUSTICE S.C. SHARMA, MEMBER-J) Instant OA has been instituted for the following relief(s) :
(i) To issue a writ, order or direction in the nature of Certiorari quashing the respondents No.3 & 4 orders dated 2.6.2004 (Annexure A-1) and 26.2.2004 (Annexure A-II) respectively denying the petitioners claim for counting service from 3.3.1973 to 10.9.1978 rendered in U.P. Govt.
(ii) To issue a writ, order or direction in the nature of Mandamus directing the respondent No.3 to count the petitioners service from 3.3.1973 to 10.9.1978 rendered in State Govt. Deptt. and calculate full pension and other terminal benefits with other consequential benefits.
(iii) To issue any other direction as this Honble Tribunal may deem fit and proper in the circumstances of the case.
(iv) To award cost of the petition to the petitioner.
2. The pleadings of the parties may be summarized as follows :
It has been alleged by the applicant that he was initially appointed on the post of Assistant Teacher on 3.3.1973 in Primary School, Dangi Barwalia, Block Singhpur District Rae Bareilly under the control of Respondent No.5. During the course of his employment under Basic Sikhsa Parishad, Rae Bareilly, U.P. in order to get better and higher employment under Central Govt. as per his suitability and educational qualification, the applicant intended to obtain No Objection Certificate from respondent No.5 to get his name registered in local Employment Exchange as provided vide Govt. of India, Ministry of Home Affairs O.M. dated 21.3.1964. It has been provided that all vacancies in Central Govt. Establishment other than those filled through the UPSC or agencies like the Staff Selection Commission should be notified to the nearest Employment Exchange and no department or office should fill any vacancy by direct recruitment, unless the Employment Exchange issue a Non-Availability Certificate. As per Rule the Head of Office should not raise any objection in the case of temporary employee, unless he comes to the conclusion that it would be prejudicial to the public interest to allow the employee concerned to register himself at the Employment Exchange. It has been provided in the Rules that selection in Central Govt. Office through Employment Exchange is only on deputation for one year and thereafter absorption in new department and there remains continuity in service from parent department to new department treating the resignation only a technical break. While working in the Field Gun Factory, Kanpur, the applicant represented vide his representation dated 27.11.2002 to count his former service rendered in U.P. State Govt. from 3.3.1973 to 10.9.1978 (Total about 5.1/2 years) towards the service being done under Central Govt. for the purpose of pensionary benefits only. The applicant also submitted the required certificate dated 6.10.2005 issued by the Headmaster. A declaration required under Rule 59(1) (iv) of CCS (P) Rules 1972 was also submitted on 5.11.2003 duly witnessed and countersigned by Head of Office. After receipt of the representation of the applicant, the respondent No.3 wrote a letter to respondent No.4 for counting of applicants service rendered in U.P. State Govt. taking the stand that the applicants case is covered with rule 26 (2) of CCS (P) Rules 1972. The services rendered by the applicant in State Govt. was countable under the existing rules and the letter was rightly wrote to respondent No.4 but respondent No.4 declined to accord permission to count the applicants service under State Govt. No reason was assigned in the order of rejection of respondent No.3 or 4. All the formalities were fulfilled by the applicant. In this matter as respondents did not assign any reasons for rejecting the claim, hence this OA.
3. Respondents contested the case and denied the allegations made in the OA and filed the counter affidavit. However, it has been alleged that the applicant has already retired from the post of Checker in Field Gun Factory, Kanpur on 30.6.2004 as U.D.C. It has also been admitted by the respondents that earlier to joining the Factory of the Respondents on 12.9.1978 the applicant had been working as Assistant Teacher in the Primary School, Dangi Barwalia, Block Singhpur, District Rae Bareli and he served during the period from 3.3.1973 to 10.9.1978. The application was submitted by the applicant on 27.11.2002 after more than 14 years of joining this organization of the respondents and he requested the respondents for counting the service rendered by him in the State Govt. for getting the pensionery benefit in terms of CCS (Pension) Rules, 1972. The applicant mentioned that he had resigned from the post of Assistant Teacher on personal grounds and has joined the respondents Factory. The matter was also taken up by the Basic Shiksha Parishad, Rae Bareili. It has also been admitted by the Basic Shiksha Adhikari that the applicant rendered the services up to 10.9.1978 and during this period no Service Book was prepared so the pensionery benefit has not been granted to the applicant for the past services. Basic Shiksha Adhikari, Raebareilly also confirmed that the applicant tendered his resignation on 10.9.1978and also that he was appointed on 03.03.1973 as an Assistant Teacher in the Primary School. The matter was taken up with PCDA (Pension), Allahabad for counting his services rendered by the applicant in the earlier department and that the resignation was submitted by the applicant and the resignation was accepted and the case of the applicant falls in Rule 26 (2) CCS (Pension) Rule and service rendered in the earlier department is forfeited and the matter was rejected. The OA is lacks merit and liable to be dismissed.
4. We have heard Shri R.K. Shukla, Advocate for the applicant and Shri Anil Dwivedi, Advocate for the respondents and perused the entire facts of the case.
5. From perusal of the pleadings of the parties it is admitted fact that prior to joining in the department of the respondents the applicant served w.e.f. 3.3.1973 to 10.9.1978 in the department under the control of Govt. of U.P. and the applicant worked under Basic Shiksha Adhikari, Raebareilly. It is also admitted fact that after selection in the present department of the respondents the applicant tendered his resignation from earlier service and the resignation was accepted by the earlier department. Learned counsel for the applicant argued that the case of the applicant is covered under rule 26 (2) CCS (Pension) Rule and the respondents illegally declined from counting the services rendered in the earlier department for the purpose of pensionary benefit. It has been alleged by the learned counsel for the respondents in the counter that the applicant prior to joining in the service of the respondents tendered his resignation from the earlier service and hence the case of the applicant is covered under Rule 26 (1) CCS (Pension) Rule and that the respondents are justified in declining to count the service of the applicant from the earlier department for the purpose of pensionary benefit. We are required to decide whether the case is covered under Rule 26 (2) Pension Rule. It will be appropriate to reproduce the Rule 26 (2) CCS (Pension) Rule wherein it is provided that A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. Hence in view of this Rule where it has been provided that if resignation has been submitted from the earlier department after obtaining the prior permission of the department then his earlier services shall not be forfeited as provided in Rule 26. In the present case the applicant joined the services of the respondents after obtaining the prior permission from the earlier employment and in this connection learned counsel for the applicant placed reliance on a letter of the respondents Annexure-CA-1 as well as Annexure-CA-2. The relevant portion of letter dated 18.11.2003 is as under :
It would be seen from the application that individual had served as Asstt. Teacher in Primary School, Dangi, Barawalia, Block - Singhpur Distt.- Raebareli under the Basic Shiksha Parishad Education Deptt. of U.P. during the period from 03.03.1973 to 10.09.1978. He had obtained No Objection Certificate for higher employment from his Deptt. and having sponsored by Employment Exchange got selected and appointed as Checker in this Factory on 12.09.1978 against Physically Handicapped quota. The individual had tendered resignation from service w.e.f. 10.09.1978 before joining this Factory.
The matter was taken up with Basic Education Officer, Raebareli to confirm correctness of service rendered by the individual. The letter No. 4107 08/2003-2004 dtd. 11.08.2003 confirming the correctness of above service and resignation tendered on 10.09.1978 is attached in original for perusal. Perusal of the letter of the respondents shows that it has been admitted by the applicant that he joined the services of the respondents after obtaining the prior permission from the earlier employment hence the case of the applicant is covered under Rule 26 (2) CCS (Pension) Rules. Reliance has also been placed on a order passed by the C.A.T. Principal Bench reported in Administrative Total Judgments 2005(1) page 602 in the case of H.K. Bhatnagar Vs. Union of India and ors. The relevant portion of the order is reproduced as under :
As regards, temporary service rendered in MCD to be counted as qualifying service for pensionary purposes, reliance is placed by the learned counsel for the applicant on the decision of the Apex Court in the case of R.L. Marwala v. Union of India and others, 4 JT 1987 (3) S.C. 292 to contend that as per Para 7 of the Govt. order dated 29.8.1984 irrespective that one is temporary servant if joined Central Govt. would be allowed to count his past service rendered by him in autonomous body towards pensionary benefits irrespective of his status. Hence it is settled position of law that if an employee joined in the subsequent department after obtaining No objection Certificate from the earlier employment then his past services rendered in earlier department shall be counted for pensionary benefit. Moreover the same position is provided in Rule 26 (2) CCS (Pension) Rule which is confirmed by the Principal Bench of the CAT in the above mentioned order.
6. It has been argued by the learned counsel for the respondents that the case of the applicant is not covered under Rule 26 (2) CCS (Pension) Rule rather it is covered under Rule 26 (1) CCS (Pension) Rule and it will be appropriate to reproduce this rule, which is as under :
Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forteiture of post service. It has been provided in this Rule that if an employee has resigned from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of post service. But the case of the applicant is entirely different. This is not the case of the applicant that earlier he submitted the resignation from his earlier service and thereafter in the interest of service he withdrew the resignation. It is seen that earlier service rendered by the applicant in the department shall stand forfeited and shall not be counted for pensionary benefit but in the present case the applicant resigned from the earlier department and obtained No Objection Certificate from the earlier employment and thereafter joined the respondents department. Hence the case of the applicant falls under the Rule 26 (2) CCS (Pension) Rule. We disagree with the arguments of the learned counsel for the respondents. We have also perused the impugned order passed by the respondents and from perusal of the order Annexure-A-1 dated 2.6.2004 it appears that the respondents did not apply their mind to the relevant provision of CCS (Pension) rule and without assigning any reason rejected the claim of the applicant for the purpose of pensionary benefit. In our opinion this order is against the spirit of Rule 26 (2) of CCS (Pension) Rule.
7. For the reasons mentioned above we are of the opinion that the impugned order passed by the respondents is not in accordance with law and rules of the CCS (Pension) Rule and the case of the applicant is fully covered under Rule 26 (2) CCS (Pension) Rule and the position has also been confirmed by the Principal Bench of CAT in the earlier published judgment. In our opinion the applicant is entitled to the relief claimed. Moreover plea has also been taken that the applicant has already retired from the service but it is significant to state that the applicant has submitted his representation for counting his earlier service for pensionary benefit while he was in the department of the respondents and after retirement he has moved an application and there is no bar in filing the OA.
8. The OA is allowed. The impugned orders passed by respondent No.3 and 4 dated 2.6.2004 (Annexure-A-1) and 26.2.2004 (Annexure A-2) respectively are quashed. The applicant is entitled for counting of the services rendered by the applicant in the earlier department w.e.f. 03.03.1973 to 10.9.1978 counted for the purpose of pensionary benefit. Respondents are directed to refix the pension of the applicant from the date when he retired from the service and arrears shall be paid to him as per revised PPO to be issued. The order shall be complied with within a period of three months from the date of receipt of certified copy of this order. The applicant shall produce the copy of this order before the respondent at the earliest. No costs.
Member-A Member-J RKM/ Rule 26 CCS (Pension) Rule :
(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forteiture of post service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
12. As regards, temporary service rendered in MCD to be counted as qualifying service for pensionary purposes, reliance is placed by the learned counsel for the applicant on the decision of the Apex Court in the case of R.L. Marwala v. Union of India and others, 4 JT 1987 (3) S.C. 292 to contend that as per Para 7 of the Govt. order dated 29.8.1984 irrespective that one is temporary servant if joined Central Govt. would be allowed to count his past service rendered by him in autonomous body towards pensionary benefits irrespective of his status.
It would be seen from the application that individual had served as Asstt. Teacher in Primary School, Dangi, Barawalia, Block - Singhpur Distt.- Raebareli under the Basic Shiksha Parishad Education Deptt. of U.P. during the period from 03.03.1973 to 10.09.1978. He had obtained No Objection Certificate for higher employment from his Deptt. and having sponsored by Employment Exchange got selected and appointed as Checker in this Factory on 12.09.1978 against Physically Handicapped quota. The individual had tendered resignation from service w.e.f. 10.09.1978 before joining this Factory.
The matter was taken up with Basic Education Officer, Raebareli to confirm correctness of service rendered by the individual. The letter No. 4107 08/2003-2004 dtd. 11.08.2003 confirming the correctness of above service and resignation tendered on 10.09.1978 is attached in original for perusal. ??
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