Punjab-Haryana High Court
Union Of India And Anr vs Sameer Aggarwal And Anr on 18 April, 2022
Bench: G. S. Sandhawalia, Vikas Suri
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115
CWP-7694-2022
Date of Decision: April 18, 2022
Union of India & another
....Petitioners
VERSUS
Dr.Sameer Aggarwal & another ....Respondents
CORAM: HON'BLE MR. JUSTICE G. S. SANDHAWALIA
HON'BLE MR. JUSTICE VIKAS SURI
Present:- Mr.Namit Kumar, Advocate, for the petitioners.
Mr.Anil Malhotra, Advocate, for caveator-respondent No.1
G.S. SANDHAWALIA, J. (Oral):
The present writ petition, filed under Articles 226/227 of the Constitution of India is directed against the order dated 27.09.2021 (Annexure P-8) passed by the Central Administrative Tribunal, Chandigarh whereby the Original Application, filed by respondent No.1 herein was allowed on account of the fact that the matter was squarely covered by the judgment rendered by the Tribunal in Original Application No.060/00105/2018 titled Dr.Neelam Aggarwal & others Vs. Union of India & others, decided on 13.03.2018.
It was also noticed by the Tribunal that the said judgment had been upheld by the Co-ordinate Bench in Union of India & others Vs. Dr.Neelam Aggarwal & others, 2019 (4) SCT 842 on 22.10.2018. Resultantly, the Senior Standing Counsel for Union of India could not dispute the fact that the application was allowed in the same terms and the applicant-respondent No.1 herein was granted the benefit of GPF-
1 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -2- cum-Old Pension Scheme (OPS). It is pertinent to mention that the Tribunal did not grant any benefit for the past service rendered by him with Punjab Government but for the arrears towards his claim for pension. The said respondent has also not filed any cross-petition against that claim.
Counsel for Union of India has vehemently submitted that the SLP (Civil) Diary No.43765/2019 was dismissed on 10.01.2020 on the ground of delay of 317 days in filing the petition since the question of law had been kept open and therefore, the matter needs to be decided on merits. It is accordingly argued that respondent No.1 has been given the benefit of the OPS wrongly on account of the fact that he was appointed on ad-hoc basis on 07.10.2002 as an Assistant Professor of Orthopedic Surgery and he had been given regular appointment only on 21.12.2005 (Annexure P-3). Therefore, as per the terms and conditions of his appointment letter (Annexure P-2), the New Pension Scheme would govern him as per Clause 6. It is submitted that it was a fresh appointment and therefore the Tribunal was not justified in allowing the Original Application.
The writ petition has been opposed by counsel for the caveator-respondent No.1 who has brought to our notice that respondent No.1 is identically situated to the applicants in the earlier OA (Dr.Neelam Aggarwal's case) and therefore, filing of the writ petition and challenge to the order passed by the Tribunal is not justified, especially when 2 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -3- concession had also been granted by counsel for the Union of India before the Tribunal.
We are in agreement with the arguments raised by counsel for the caveator-respondent No.1. A perusal of the paperbook would go on to show that after the order had been passed by the Division Bench on 22.10.2018 (Annexure A-9) and the SLP was dismissed on 10.01.2020 (Annexure A-10), the implementation was done on 02.05.2020 qua 21 similarly situated Doctors by the Post Graduate Institute of Medical Education & Research, Chandigarh, petitioner No.2 herein. A perusal of the said order would go on to show that those Doctors were appointed on ad-hoc basis between 1996-2003 and had been appointed on regular basis between 21.12.2003 to 23.04.2011 and thus, it would be apparent that they were also appointed on regular basis like respondent No.1 herein who was appointed on 21.12.2005. The said implementation order reads as under:
"No.F.11012/EI(I)/PGI/2020 Dated: 02.05.2020 In compliance of the orders of the Hon'ble CAT passed in O.A.No.0060/00105/2018 dated 13.03.2018 and the dismissal of the appeal filed by the PGIMER in the Hon'ble High Court of Punjab & Haryana vide CWP No.26482/2018 dated 22.10.2018 and finally decided by the Hon'ble Supreme Court of India on 10.01.2020 SLP (Civil) Diary No.43765/2019 and in view of the approval conveyed by the Govt. of India, Ministry of Health & Family Welfare vide letter F.No.V-17020/39/2009-INI-II(Pt) dated 04.03.2020 to implement the orders dated 13.03.2018 of the Hon'ble Tribunal in the O.A. titled as Neelam Aggarwal & Others in favour of the Petitioners only, the following petitioners are 3 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -4- granted the benefit of General Provident Fund-cum-Old Pension Scheme prevalent at the time of their respective initial appointments along with all the consequential benefits, arising therefrom, in accordance with rules and law:-
Sr. Name Department Date of Date of
No. appointment appointment
on adhoc on regular
basis basis
1. Dr.Neelam Obst. & Gynae 12.06.1996 10.01.2008
Aggarwal
2. Dr.Sadhna Gastroenterology 22.03.2000 10.01.2008
B.Lal
3. Dr.Rajesh Neurosurgery 07.04.2000 21.12.2005
Chhabra
4. Dr.Jasmina Haematology 01.09.2000 10.01.2008
Ahluwalia
5. Dr.Ajay Hepatology 24.04.2001 21.12.2005
Duseja
6. Dr.Parampreet Neurology 07.05.2001 21.12.2005
Singh
Kharbanda
7. Dr.Jaimanti ENT 27.07.2001 21.12.2005
Bakshi
8. Dr.Rajesh Cardiology 27.07.2001 21.12.2005
Vijayvergiya
9. Dr.Bhavneet Pediatrics 24.09.2001 21.12.2005
Bharti
10. Dr.Sumeeta Med.Parasitology 16.07.2002 21.12.2005
Khurana
11. Dr.Prema Pediatric Surgery 16.07.2002 23.04.2011
Menon
12. Dr.Rijuneeta ENT 05.10.2002 21.12.2005
13. Dr.Sanjay Endocrinology 18.10.2002 21.12.2005
Bhadada
14. Dr.Devi Dayal Pediatrics 30.10.2002 21.12.2005
15. Dr.Joseph Pediatrics 06.11.2002 21.12.2005
Mathew
16. Dr.Ajay Behl Cardiology 10.04.2003 21.12.2005
17. Dr.Sandeep Neurosurgery 10.04.2003 23.04.2011
Mohindra
18. Dr.Kushaljit Radiodiagnosis 03.05.2003 21.12.2005
Singh Sodhi
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CWP-7694-2022 -5-
Sr. Name Department Date of Date of
No. appointment appointment
on adhoc on regular
basis basis
19. Dr.Akshay Neurology 04.11.2003 21.12.2005
Anand
20. Dr.Manish Neurology 05.11.2003 23.04.2011
Modi
21. Dr.Ashish Renal 24.12.2003 21.12.2005
Sharma Trans.Surg.
Dated, Chandigarh the DIRECTOR
PGIMER, Chandigarh
Endst.No.F.11012/EI(I)/PGI/2020 Dated 02.05.2020"
The claim of the applicant-respondent No.1 was denied by the Union of India on 23.12.2020 (Annexure A-1) on the request received from PGIMER, on the ground that the merits of the case had not been decided by the Apex Court and therefore, the decision of the Apex court had been implemented in favour of the petitioners therein only. The Institute was asked to take necessary action in the matter accordingly.
Relevant portion reads as under:
"3. It is further intimated that the Hon'ble Supreme Court had dismissed the SLP Dy.No.43765/2019 on the Technical Grounds. As per advice received from Department of Legal Affairs (DoLA), Ministry of Law & Justice, the merits of the case have not been discussed in the Hon'ble Supreme Court so far. Further, as advised by DoLA, the decision of the Hon'ble Supreme Court has been implemented in favour of Petitions (sic. petitioners) only.
4. In view of the facts mentioned above, the request of Dr.Sameer Aggarwal for grant of GPF-cum-Old Pension 5 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -6- Scheme could not be acceded to.
5. The Institute may take further necessary action in the matter accordingly."
Resultantly, the rejection order was passed on 07.01.2021 (Annexure A-2). Respondent No.1 thereafter filed OA taking the specific plea that he was similarly situated and that there was no break in his service and thus, he was entitled for the benefit of Old Pension Scheme.
We have perused the OA and a reading of para Nos.4 (viii),
(xii) and (xiii) would specifically show that there was no break in his service and the fact that no selection was conducted by the PGIMER for a period of 5 years and similarly situated persons had been granted the said benefit. A perusal of the written statement filed by the Union of India before the Tribunal would go on to show that there was no denial to these categorical pleadings. The only plea taken was that the earlier judgment would be distinguished at the time of final arguments. Similarly, under Clause 4(xiii), it was averred that since the SLP had been dismissed by keeping the question of law open and the appointment was on ad-hoc basis, therefore, the appointment order being accepted by the applicant, it would bind him down to the New Pension Scheme.
A perusal of the earlier order of the Division Bench would also go on to show that it was noticed by the Division Bench that the similarly situated persons were working against those posts since 1996 and there was continuity of service and the services rendered by them were safeguarded for the purpose of pay-protection. It was also noticed 6 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -7- that the PGIMER had extended the benefit of Old Pension Scheme to the similarly situated non-medical faculty and the same was not denied in the writ petition. Accordingly, we are of the considered opinion that respondent No.1 is identically situated and there was no denial of the said fact in the pleadings before the Tribunal.
Another aspect which is to be noticed is that another Division Bench of this Court in Harbans Lal Vs. The State of Haryana & others, 2012 (3) SCT 362, was also noticed in the earlier decision of the Tribunal which had upheld the principle that once the services of work-charge employees were regularized then the earlier service was also liable to be considered for the purpose of pension and the entire service was to be counted back from the said date of his initial appointment. It is not disputed that the SLP No.23578 of 2012 filed by the State of Punjab was dismissed on 30.07.2012 and Review Petition No.2038/2013 was also dismissed on 04.11.2015. The relevant portion reads as under:
"From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Re- structured Defined Contribution Pension Scheme (Annexure P-1) has been introduced for the new entrants in the Punjab Government Service w.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the Punjab Civil Services Rules, cannot be further amended by issuing clarification/instructions dated 30.5.2008 (Annexure P-3). The petitioner will continue to be governed
7 of 8 ::: Downloaded on - 21-04-2022 21:28:32 ::: CWP-7694-2022 -8- by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004."
Accordingly, keeping in view the above discussion we are of the considered opinion that the present writ petition is liable to be dismissed since respondent No.1 is identically situated and placed with similarly situated faculty members of petitioner No.2-Institute. There is no justifiable reason for this Court to interfere on account of the fact that there was an admission regarding all these aspects in the pleadings itself by the petitioner No.2-Institute. Resultantly, the present writ petition is hereby dismissed.
(G. S. SANDHAWALIA) JUDGE (VIKAS SURI) JUDGE APRIL 18, 2022 sailesh Whether speaking/reasoned Yes/No Whether reportable Yes/No 8 of 8 ::: Downloaded on - 21-04-2022 21:28:32 :::