Central Administrative Tribunal - Delhi
Rakesh Goswami vs Govt. Of Nctd on 14 August, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 458/2016
Reserved On:07.08.2019
Pronounced On:14.08.2019
HON'BLE MS. NITA CHOWDHURY, MEMBER (A)
Rakesh Goswami
S/o Shri Shilendra Goswami,
Aged about 36 years,
OCC: Lecturer,
Technical Engineer, Living at Flat No.535,
3rd Floor, Paradise Apartment,
Block-E-3/535, Sector-18,
Rohini, Delhi-110089. .. Applicant
(By Advocate: Shri Amitesh Kumar)
Versus
1. Government of NCT of Delhi,
Directorate of Training and Technical
Education,
New Delhi
Through its Secretary,
Muni Maya Ram Marg,
Pitampura,
Delhi-110088.
2. Union of India, Ministry of Personnel,
Public Grievances and Pension,
Department of Personnel & Training,
Through its Secretary, North Block,
New Delhi-110001.
3. Guru Nanak Dev Institute of Technology,
Through its Principal, Sector-15, Rohini,
New Delhi-110085. .. Respondents
(By Advocate : Shri Sameer Sharma)
ORDER
The applicant has filed this Original Application (OA) seeking the following reliefs:-
2 OA No.458/2016
"(i) Direct the respondents to consider and count the past military service rendered by the applicant for the purpose of calculating his pensionary benefits, in his present service as Lecturer (Electrical Engg.) in the Directorate of Training and Technical Education;
(ii) Direct the respondents to grant the applicant the benefit of pensionary benefits of civil pension as per the old pension scheme under the Central Civil Service (Pension) Rules, 1972;
(iii) Direct the respondents to grant the applicant all consequential benefits after counting his past military service and by extending him the pensionary benefits as per old pension scheme under the Central Civil Service (Pension) Rules, 1972; and
(iv) Any other order which is deemed just and proper in the nature of the circumstances of the present case be also passed in favour of the applicant in the interest of justice".
2. The facts, in brief, are that Indian Navy issued an advertisement on 19.08.1999 inviting applications from candidates for enrolment as Direct Entry Diploma Holder (3 years) for 1/2000 batch, Artificer Apprentices for AA-112 batch and Matric Entry Recruits for 1/2000 batch. Applicant being eligible in terms of the said advertisement and desirous of seeking enrolment as Direct Entry Diploma Holder for 1/2000 batch, submitted his application as per the procedure contemplated in the said advertisement. Further, on being selected by the Indian Navy, applicant was enrolled as Direct Entry Artificer for 1/2000 batch by the Indian Navy on 05.02.2000. On completion of initial stage of 10 years, applicant was discharged from the Indian Navy on 28.02.2010. Thus, he completed 10 years and 24 days of service with the Indian Navy, i.e., w.e.f. 05.02.2000 till 28.02.2000.
3 OA No.458/2016
3. The applicant has further submitted that Union Public Service Commission (UPSC for short) issued an advertisement in January, 2009 inviting applications for various posts including the post of Lecturer (Electrical Engineering in Government Polytechnic). Pursuant to the said advertisement of the UPSC, the applicant submitted his application seeking consideration for appointment as Lecturer (Electrical Engineering) in Government Polytechnic through proper channel. The Lt. Commander (Manager Admin), Sub Marine Maintenance Unit, Naval Doc Yard, Vishakapatnam, vide his letter dated 05.02.2009, addressed to the Secretary, UPSC forwarded the application of the applicant for the post of Lecturer (Electrical Engineering). In the said letter, it was clearly mentioned that applicant was due for release from Indian Navy on 28.02.2010 and after that he can take up civil employment w.e.f. 01.03.2010 (Annexure A-3). Thereafter, on declaration of result of the recruitment process in the employment news on 15.01.2010, his name was shown as successful candidate at Sl.No.7 for the post of Lecturer (Electrical Engineering), Government Polytechnic under the Directorate of Training and Technical Education (in short DTTE), Govt. of NCT of Delhi (in short GNCTD). Thereafter, UPSC, vide its letter dated 16.11.2009 recommended the name of the applicant to the DTTE, GNCTD for recruitment to the post of Lecturer (Electrical Engineering) in Govt. Polytechnic under DTTE. Further, pursuant to the recommendations of UPSC, DTTE vide its 4 OA No.458/2016 Memo dated 15/18.01.2010 offered appointment to the applicant as Lecturer (Electrical Engineering) in the pay scale of Rs.8000-275- 13500 under DTTE, GNCTD (Annexure A-6). On 28.02.2010, Commander, Officer Incharge, Release Centre, Bureau of Sailor, Mumbai, vide his letter dated 28.02.2010 issued Ex-Serviceman Identity Card to applicant (CHEAP 180890-R). Applicant was thereafter vide order dated 04/05.08.2010 appointed/reemployed against the permanent post of Lecturer (Electrical Engineering) under DTTE, GNCTD in the initial pay to be fixed according to the rules/instructions issued by the Govt. of India in the pay scale of Rs.8000-13500 (pre-revised) with immediate effect on the terms and conditions laid down in the offer of appointment. On 17.08.2010, the applicant reported and joined his duty as such in G.B. Polytechnic under DTTE, GNCTD and was taken on the strength of the said institute w.e.f. 17.8.2010 (F/N) in the same pay scale (Annexure A-9 (Colly)).
4. The applicant next contended that as he had initially worked in the Indian Navy for 10 years and 24 days and thereafter joined as Lecturer (Electrical Engineering) in the DTTE, GNCTD w.e.f. 17.08.2010, he submitted a representation on 13.12.2010 to the Principal Secretary, DTTE, GNCTD requesting that his service rendered in the Indian Navy, i.e. military service may be counted towards civil pension and his case may be forwarded to the 5 OA No.458/2016 Principal Accounts Officer/Controller of Accounts, Govt. of NCTD for opening of GPF Accounts. He also informed that a form is required to be sent to "The Commodore (for Staff Officer [GB]), Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai-400 088" for verification of his rendered military service and a copy thereof was attached with the said representation (Annexure A-11). He again submitted a representation on 11.07.2012 requesting for issuance of probation completion certificate so that his rendered military service may be considered for counting the same towards civil pension under Rules 19/20 of CCS (Pension) Rules, 1972 (Annexure A-12). Thereafter, the Principal of Gurunank Dev Co-ed Polytechnic vide his letter dated 14.02.2013 [Annexure A-13 (Colly)] forwarded the said representation of the applicant to the Deputy Director, DTTE, GNCTD for information and necessary action. On 06.06.2013, the DTTE, GNCTD issued an order whereby completion of probation of various lecturers including the applicant was ordered and therein it was clearly mentioned that the applicant's date of joining is 14.09.2010 and date of completion of probation period is 13.09.2011 respectively (Annexure A-14). As both the dates were wrongly mentioned, i.e. joining as well as completion of probation period, applicant submitted a representation on 2.8.2013 to the Dy. Director, DTTE, GNCTD seeking correction in both the dates. According to the applicant, his date of joining is 17.08.2010 and that of completion of probation period is 16.08.2011 (Annexure 6 OA No.458/2016 A-5) which may be corrected. In the said representation he has also submitted that his past military service may be counted for pensionary benefits and opening of new GPF account. Thereafter, the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi, vide his letter of the same dated 08.08.2013, forwarded the representation of the applicant to the Administrative Officer (in short AO), DTTE, GNCTD regarding correction in the date of joining and date of completion of probation. Subsequently, vide letter dated 30.10.2013, Commander-At-Arms, Staff Officer (GB), Bureau of Sailor forwarded the proforma certificate for counting of Naval Service of the applicant for pensionary benefits in Civil Service (Annexure A-19). Thereafter, AO, DTTE, GNCTD issued a corrigendum dated 17.11.2013 wherein both the dates were corrected as 17.08.2010 and 16.08.2011 respectively (Annexure A-
20).
5. The applicant has further contended that Sr. Accounts Officer (Navy), vide his letter dated 28.02.2014, forwarded service documents in original form with verified proforma certificates of 3 Ex-Sailors including the applicant herein to the Officer Incharge, Bureau of Sailors, Mumbai regarding counting of their past service in Indian Navy. The Commander, Staff Officer, Naval Pension Office, Mumbai vide letter dated 31.03.2014 forwarded the duly verified and countersigned proforma in respect of the applicant to 7 OA No.458/2016 the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi for counting of his formal Naval Service and for further action at their end (Annexure A-22). Immediately thereafter, i.e. on 12.05.2014, the applicant returned his terminal benefits received from Indian Navy to the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi for counting of former Naval Service towards pensionary benefits in Civil Service and requested for counting of his 10 years and 24 days of rendered military service in Indian Navy towards civil pension and consequent membership under General Provident Fund in accordance with Rule 19(1) (b) of the CCS (Pension), Rules, 1972. Applicant has further submitted that vide his letter dated 12.05.2014, he has informed the Principal, Guru Nanak Dev Polytechnic that he is depositing an amount of Rs.4,08,045/- received from Indian Navy by means of DDO. The Dy. Director, DTTE, GNCTD vide his letter dated 30.09.2014 requested the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi to provide service records in original of previous military service of the applicant for scrutiny/processing of the case regarding counting of his past service (Annexure A-24). Thereafter, the applicant vide his letter dated 15.10.2014 submitted certificate of military service rendered by him to Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi and grant of pension as per old pension rules. In response to the same, the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi vide his letter 8 OA No.458/2016 dated 20.10.2014 for the certificate of service issued by Indian Navy in lieu of service record to the Dy. Director, DTTE, Govt. of NCT Delhi for counting of past service (Annexure A-26).
6. The applicant further submits that the Deputy Director, DTTE, GNCTD vide his letter dated 08/10.12.2014 requested the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi to provide clarification for interruption of service rendered by him in Indian Navy may be processed for condonation for interruption in service for the purposes of counting of past service (Annexure A-27). Thereafter, in reference to the aforesaid letter, he submitted a detailed representation on 11.12.2014 regarding interruption in service to the Principal, Guru Nanak Dev Co-ed Polytechnic, Rohini, New Delhi and on 27.04.2015 deposited an amount of Rs.1,35,496 towards interest on terminal benefits received from previous employer, i.e., Indian Navy (Annexure A-29 [Colly]). Finally, he submitted a detailed representation on 08.10.2015 to the Dy. Director, DTTE, GNCTD requesting to grant the benefits of Rule 19 to him from the initial date of joining, i.e., 05.02.2000 as his employment is in continuation of service on re-employment (Combined Military and Civil Service). Applicant has also relied upon various OMs, and in particular submitted that his case is fully covered by the OM dated 28.10.2009 wherein it has been held as under:-
9 OA No.458/2016
"OFFICE MEMORANDUM Subject: Mobility of personnel amongst Central/State & Autonomous Bodies while working under Pensionable establishments - regarding.
The undersigned is directed to say that while introducing the New Pension Scheme from 1.1.2004, amendments to various existing rules including Rule 2 of the CCS (Pension) Rules, 1972 were made whereby these rules became inapplicable to those appointed to Central Government Service and posts from 1.1.2004. Also the new and changed position obtaining on mobility of personnel between Central Government departments; between Central and State Governments; and between Govt. departments and autonomous bodies on technical resignation from 1.1.2004 under these rules were clarified vide OM of even number dated 26.07.2005.
2. The position has been further reviewed by the Government of India and it has been decided to continue mobility of Government servants/Autonomous body employees appointed on or before 31.12.2003 and who were governed under the old non-contributory Pension Scheme of their respective Governments/organisations in order to provide the continuance of Pensionary benefits based on combined service in accordance with the CCS (Pension) Rules, 1972 as under:-
a. Between the Central Government Departments covered under CCS (Pension) Rules, 1972; and Railway Pension Rules, 1993 or other similarly non-contributory pensionable establishments of Central Government covered by Old Pension Rules other than CCS (Pension) Rules, 1972;
b. Between State and Central Govt. provided the employees were appointed in the State Government(s) on or before 31.12.2003 and covered under Old Pension Scheme similar to CCS (Pension) Rules, 1972; and c. The pre-existing arrangement of mobility between State/Central Autonomous Body to Central/State Govt. and between autonomous 10 OA No.458/2016 bodies that were governed by Old Pension Schemes in force upto 31.12.2003 vide No.28/10/84-P&PW dated 7.2.1986 and OM No.28.10.1984-Pension Unit dated 29.08.1984 stand restored although those under CPF etc. will not be allowed entry into the Old Pension Scheme on appointments from 01.01.2004.
3. These instructions modify/supersede provisions in the OM of even number dated 26.07.2005 to the extent as indicated above and take effect from 01.01.2004".
In view of the above, applicant has prayed that the OA be allowed.
7. The applicant has relied on the following judgments passed by the various Benches of the Tribunal:-
(i) OA No. 2802/2012 titled as Bhaskar Mishra Vs. UOI & Others decided on 16.01.2017 (Principal Bench);
(ii) OA No.4069/2013 titled as Mrs. Sosamma K. Sam Vs. AIIMS and Others decided on 10.02.2017 (Principal Bench);
(iii) OA No.3160/2015 and connected OA titled as Suresh Kumar Bukka and Another Vs. Govt. of NCT of Delhi and Others decided on 13.02.2017 (Principal Bench); and
(iv) OA No.310/00926/2015 titled as C. Puviarasu Vs. The Chairman, Railway Board and Other decided on 04.04.2017 (Chennai Bench).
8. The respondents have filed their reply and submitted that the applicant has relied on Rule 19 of CCS (Pension) Rule in support of 11 OA No.458/2016 his claim and as per provisions contained in Rule (2) of CCS (Pension) Rules, 1972, these rules are applicable only to Government Servants appointed on or before 31.12.2003, whereas applicant was appointed in this Directorate on 17.08.2010. In this regard, a clarification is also sought from DoP&T and vide reply bearing number 28/3/2016- P&PW(B) dated 14.06.2016 (Annexure R-1) received from Govt. of India, Ministry of Personnel, P.G. and Pensions, Department of Pension & Pensioners' Welfare which mentions that "Rule 2 of CCS (Pension) Rules, 1972 clearly states that these rules shall apply to Govt. Servants appointed on or before 31.12.2003 including civilian Govt. Servants in Defence services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments". Hence, Rule 19 of CCS (Pension) Rules, 1972 is not at all applicable to Govt. servants appointed on or after 01.01.2004. They have further submitted that applicant cannot claim benefit extended to persons working in other Departments in whose cases their previous service was counted. With regard to RTI reply, the respondents have clearly submitted that regarding contribution to new pension scheme for appointees of Central Government Services is applicable to persons appointed on or after 01.01.2004, hence is not at all applicable in the case of the applicant.
12 OA No.458/2016
9. They have further submitted that Rule 19 of CCS (Pension) Rules, 1972, are applicable to those military pensioners to whom the CCS(Pension) Rules are applicable on re-employment in the civil side. Rule 2 of the CCS(Pension) Rules are applicable to Government servants appointed to the civil service on or before 31.12.2003. Thus the CCS (Pension) Rules, 1972, are not applicable to those appointed to civil service after 31.12.2003. Moreover, as the applicant was appointed in this Directorate on 17.08.2010, hence he is not entitled for the said relief.
10. Further, the applicant's case was referred to Finance Department and it opined that the CCS (Pension), Rules, 1972 which mentions that Rule 19 is applicable only to Government Servants appointed on or before the 31.12.2003 and accordingly Finance Department feels that Rule 19 of CCS (Pension) Rules is not at all applicable in the instant case as applicant's re- employment took place in the year 2010. However, it was also mentioned that there are no specific Office Memorandums/Orders in respect of counting of past service in respect of Ex-servicemen re- employed after 01.01.2004 and hence it was advised to refer the matter of GOI, DOP&T for clarification. Accordingly, the case was referred to DOPT vide this office letter dated 15.10.2015 and reminder dated 09.02.2016. In this regard, a clarification vide number 28/3/2016-P&PW(B) dated 14.06.2016 (Annexure R-1) is 13 OA No.458/2016 received from Govt. of India, Ministry of Personnel, P.G. and Pensions, Department of Pension & Pensioner' Welfare which mentions that Rule 2 of CCS(Pension) Rules, 1972 clearly states that these rules shall apply to Govt. servants appointed on or before 31.12.2003 including civilian Govt. Servants in Defence services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments. Hence, Rule 19 of CCS (Pension) Rules, 1972 is not applicable to Govt. servants appointed on or after 01.01.2004. They have thus prayed that this OA deserves to be dismissed.
11. The respondents have also relied on the judgment passed in the case of O.A. No. 34/2009 is different from the present case as the re-employment in the matter of Manohar Singh Chana Vs. U.O.I took place before 01.01.2004 and hence cannot be taken as a precedent. They have further relied on the latest judgment passed in OA No.1252/2017 in the case of G.M. Sampath Kumar Vs. Director, Aviation Research Centre decided on 04.06.2018.
12. Heard the learned counsel for the parties and perused the pleadings on record as well as judgments relied upon by the parties.
13. The only issue involved in this case is whether applicant is entitled for the benefit of Old Pension Scheme after taking into consideration his Navy Service. In this regard, the case of the 14 OA No.458/2016 applicant is fully covered by the OM dated 14.06.2016, which reads as under:-
"Subject: Clarification regarding counting of military service rendered before joining civil service on or after 01.01.20104 under Rule 19 of CCS (Pension) Rules, 1972.
The undersigned is directed to refer to Govt. of NCT of Delhi's letter No.F1/987/2012/TE/AD/245-1035 dated 09.02.2016 received through Department of Personnel & Training vide their ID Note dated 01.03.2016 on the subject cited above and to say that Rule 2 of CCS (Pension) Rules, 1972 clearly states that these rules shall apply to Govt. servants appointed on or before 31.12.2003 including civil Govt. servants in the Defence services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments. Hence, Rule 19 of CCS (Pension) Rules, 1972 is not applicable to Govt. servants appointed on or after 01.01.2004".
Accordingly, applicant is not entitled for any relief.
14. Further, applicant's case is squarely covered by the decision of the this Tribunal in the case of G.M. Sampath Kumar (Supra), wherein the same question was considered and it was held by the Tribunal as under:-
"8. Matter was heard at length. It is admitted that the process of selection was initiated in the year 1998 and it got culminated in August 2004 when the applicant had joined the Aviation Research Centre. However, as brought out vide para 4 above, he was still given the option of availing the benefits under CCS (Pension) Rules, 1972. The same was not exercised by the applicant and it was only belatedly in 2016 only that he had represented to be covered under these rules, which was rejected.15 OA No.458/2016
9. It is, therefore, clear that the present application is barred by limitation and thus is not maintainable. Moreover, in the instant case, despite delay in the appointment process, the applicant still had the option which he did not exercise and by this act, the opportunity to avail the benefits which are claimed in the instant application, was consciously foregone.
It is also not the case of applicant that somebody whose process of recruitment started along with him has joined earlier and thus is having the same benefit and as such he is being discriminated. There is no such whisper anywhere.
Therefore, this Tribunal is of the view that the applicant cannot be covered under the Old Pension Scheme under CCS (Pension) Rules, 1972. He will be covered under the Pension Rules as were prevalent in August 2004 when he joined the Aviation Research Centre.
10. The present OA, therefore, does not succeed and the same is dismissed being devoid of merit. Since OA is decided, MA No.4805/2018, which was for early hearing, has become infructuous. Hence, this MA is also dismissed. There shall be no order as to costs".
15. The same very issue, as raised by the applicant in the instant case, has been considered by the Hon'ble High Court of Delhi in W.P. (C) No.6525/2016 and connected cases titled as V. Ramana Murthy & Others Vs. U.O.I. & Others decided on 11.09.2017 and the relevant portion of the same reads as under:-
14. An identical view has been taken in Sanjay Kumar Thakur & Ors. Vs. North Delhi Municipal Corporation of Delhi & Ors., 236 (2017) DLT 163 (DB), wherein reference was made to other case laws.
In paragraph 18 of the said judgment, it has been held:
16 OA No.458/2016
"18. We are not inclined to accept the reasoning of the Central Administrative Tribunal, Ernakulam Bench in the decision dated 28.06.2013 in OA No. 724/2012, P. Rajesh Kumar v. The Union of India, which records that benefit of the old pension scheme would be available to the applicants therein for the reason that the vacancies had arisen and related to the period prior to 1st January, 2004. The ratio and reasoning is unacceptable in view of the prescribed cut-off date of 1.1.2004, with reference to the date of joining and not the date of vacancies. The aforesaid criterion, i.e. the date of joining, is not arbitrary or whimsical but is with salutary and good reason. Courts cannot substitute the said criterion with another criterion as has been done by the Tribunal in the case of P. Rajesh Kumar (supra), wherein the date of vacancy, it has been observed, would be the fair and just criterion. This is impermissible and cannot be accepted. The courts or judicial forums cannot legislate and substitute dates. It is well-settled that the courts do not interfere with cut-off date as these are matters of discretion and within the domain of the Executive or the Legislature. The power to specify a date from which terminal or pensionary benefits, as the case may be, shall take effect is concomitant of the power of the State or Corporation to change the conditions of service unilaterally. So long as the date specified is reasonable and not wayward with reference to the requirement of fixing a point of time etc., no interference by the Court is called for. (See State of West Bengal v. Ratan Behari Dey (1993) 4 SCC 62). When classification is permissible, choice of date being a basis of classification, the date so fixed cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the given circumstances. When a line or point is to be fixed and there is no mathematical formula or logical way to fix the same precisely, the decision of the Legislature or its delegate must be accepted unless it can be said that the date or point so fixed is widely off the reasonable mark. (See Union of India v. Parameswaran Matchworks (1975) 1 SCC 305 and A. Manjula Bhashini v. A.P. Women's Coop Finance Corpn. Ltd. (2009) 8 SCC 431). Whenever a law is enacted or an amendment is made, the same 17 OA No.458/2016 has to be with effect from a particular date. When it is otherwise permissible and legitimate to fix a date, the date so fixed is open to scrutiny on the limited grounds of whimsicality and capriciousness. If the choice made is burdensome to those to whom the wrong done is sought to be rectified, it would be open to the Court to examine the choice of date and find out whether it has resulted in any discrimination. (See B. Prabhakar Rao v. State of A.P., 1985 Supp SCC 432)...".
16. In view of the above, we do not find any merit in the OA and the same is dismissed. No costs.
(NITA CHOWDHURY) Member (A) Rakesh