Central Administrative Tribunal - Delhi
Srikanta Behera vs Govt. Of Nctd on 13 December, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1875/2016
M.A. No.1833/2016
Reserved On:01.12.2017
Pronounced On:13.12.2017
HON'BLE MR. V.AJAY KUMAR, MEMBER (J)
HON'BLE MS. NITA CHOWDHURY, MEMBER (A)
1. Srikanta Behera, Aged- 36 Years,
S/o Sh. G.N. Behera,
Working as Dresser,
R/o Qtr No.25, Type-1, Bhagwan Mahavir Hospital,
Pitam Pura, Delhi-110034
2. Mukesh Hooda, Aged- 40 Years,
S/o Sh. Umed Singh,
Working as Dresser,
R/o B-3, 247-248, 3rd Floor, Sector-6,
Rohini, Delhi-110085
3. Mukesh Thakur, Aged- 32 Years,
S/o Sh. Pawan Kumar Thakur,
Working as Dresser,
R/o H.No.C-599, Indra Enclave, Phase-1,
Kirari Suleman Nagar, Delhi-110086
4. Deoashish Kumar Ravi, Aged- 32 Years,
S/o Sh. Kuleshwar Ram,
Working as Dresser,
R/o Qtr No.28, First Floor, Type-1,
Bhagwan Mahavir Hospital, Pitam Pura,
Delhi-110034
5. Vijay Kumar Yadav, Aged- 37 Years,
S/o Sh. Niwas Yadav,
Working as Dresser,
R/o BK-1/102 B, Shalimar Bagh,
Delhi-110088
6. Dinesh Yadav, Aged- 36 Years,
S/o Late Sh. Dhan Raj Singh,
Working as Dresser,
R/o H.No.153, Haider Pur Village,
Delhi-110088
2 OA No.1875/2016
7. Pradeep Kumar, Aged- 32 Years,
S/o Sh. Lal Chand Saini,
Working as Dresser,
R/o H.No.B-1014, Avantika, Rohini,
Sector-1, Delhi-110085
8. Sunil Kumar, Aged- 41 Years,
S/o Sh. Ram Fal,
Working as SCC,
R/o H.No.1010, Block-I, Mangolpuri,
Delhi-110083
9. Satbir, Aged- 38 Years,
S/o Sh. Gursharan,
Working as SCC,
R/o Flat No.334, FF, Type-I, Gulabi Bagh,
Delhi-110007
10. Raj Kumar, Aged- 41 Years,
S/o Sh. Tara Chand,
Working as SCC,
R/o H.No.E-444, Camp No.2,
Nagloi, Delhi-110041
11. Dharmender Kumar, Aged- 38 Years,
S/o Sh. Dharambir,
Working as SCC,
R/o H.No. K-446-47, Jahangir Puri,
Delhi-110033
12. Rakesh Kumar, Aged- 44 Years,
S/o Sh. Kartar Singh,
Working as Dresser,
R/o H.No.C-2/431, Sultan Puri,
Delhi-110086
13. Ved Prakash, Aged- 41 Years,
S/o Sh. Bishamber Dayal,
Working as SCC,
R/o Village Zerpur, P.O. Mandola,
District Mahendergarh, Haryana
14. Rakesh Kumar, Aged- 44 Years,
S/o Sh. Pyare Lal,
Working as SCC,
R/o H.No.A-5/5, Type A-5, Block 2nd Floor,
BJRM Hospital, Jahangir Puri,
Delhi-110033
3 OA No.1875/2016
15. Ganpat Ram, Aged- 38 Years,
S/o Sh. Ram Chander,
Working as Dresser,
R/o H.No.B-3714, Gali No.110,
Sant Nagar Burari, Delhi-110084
16. Rajinder Kumar, Aged- 40 Years,
S/o Sh. Pyare Lal,
Working as SCC,
R/o H.No.314, Type I, Gulabi Bagh,
Delhi-110007
17. Poonam, Aged- 34 Years,
D/o / W/o, Sh. Ramesh Kumar,
Working as Dresser,
R/o H.No.1/35, Budh Vihar, Phase-I,
Delhi-110086
18. Ripu Daman Verma, Aged- 44 Years,
S/o Sh. N.S. Verma,
Working as Dresser,
R/o H.No. BK-2/97, Shalimar Bagh,
Delhi-110033
19. Roshan Lal, Aged- 42 Years,
S/o Sh. Babu Lal,
Working as SCC,
R/o H.No.729, Type-I, DDA Flats,
Gulabi Bagh, Delhi-110007
20. Rajender, Aged- 40 Years,
S/o Sh. Munshi Lal,
Working as SCC,
R/o H.No.B-199, Jahangir Puri,
Delhi-110033
21. Vijay Kumar, Aged- 36 Years,
S/o Sh. Phool Singh,
Working as N.O.
R/o H.No.375, Kumhar Wali Gali,
Rampura, Delhi-110035
22. Manoj Kumar, Aged- 38 Years,
S/o Sh. Jai Kishan,
Working as Dresser,
R/o H.No.R-872, Gali No.21/A,
Swatantra Nagar, Narela,
4 OA No.1875/2016
Delhi-110040
23. Sandeep, Aged- 34 Years,
S/o Sh. Dharam Pal,
Working as Dresser,
R/o H.No.1508, Mamurpur,
Narela, Delhi-110040
24. Umesh Kumar, Aged- 35 Years,
S/o Sh. Prem Kumar,
Working as N.O.
R/o H.No.399, Gali Braliman Bawana,
Delhi-110039
25. Parveen Kumar, Aged- 33 Years,
S/o Sh. Suresh Kumar,
Working as SCC,
R/o H.No.750, Gali No.3,
Village Bakner, Delhi-110040
26. Pankaj Singh, Aged- 33 Years,
S/o Sh. Risal Singh,
Working as N.O.
R/o H.No.117, Village & Post Rithala,
Delhi-110085
27. Tej Pal, Aged- 43 Years,
S/o Sh. Suraj Mal,
Working as Dresser,
R/o H.No.E-7/186, East Gokul Pur,
Amar Colony, Delhi-110094
28. Brij Mohan, Aged- 40 Years,
S/o Sh. Jagannath,
Working as Dresser,
R/o H.No.70-71, Village New Chauhan Pur,
Karawal Nagar, Delhi-110094
29. Girdhari Lal, Aged- 41 Years,
S/o Sh. Ganeshi Lal,
Working as Dresser,
R/o H.No.2/23, Gali No.2, Jagjivan,
Marg Loni Road, Shadara, Delhi-94
30. Subhash Chand, Aged- 39 Years,
S/o Sh. Hari Kishan,
Working as Dresser,
R/o H.No.3/21, Gali No.3, Jagjivan Nagar,
5 OA No.1875/2016
Shahadra, Delhi-110094
31. Gopal, Aged- 37 Years,
S/o Sh. Randhir Singh,
Working as N.O.
R/o H.No.B-120, Vijay Nagar,
Behind Soap Factory, Narela Road,
Bawana, Delhi-110039
32. Sandeep Khatri, Aged- 35 Years,
S/o Sh. Dayanand Khatri,
Working as N.O.
R/o H.No.629, VPO Bakner,
Narela, Delhi-110040
33. Sanjay Kumar, Aged- 40 Years,
S/o Sh. Om Parkash,
Working as N.O.
R/o H.No.A-37, Mandir Mohalla,
Samay Pur, Delhi-110042
34. Anil Kumar, Aged- 38 Years,
S/o Sh. Balbir Singh,
Working as N.O.
R/o H.No.552, Main Road, Bakhtawar Pur,
Delhi-110036
35. Arun Kumar, Aged- 38 years,
S/o Sh. Tej Ram,
Working as Dresser,
R/o H.No.B-51, Mata Wali Gali,
Johripur, Delhi-110094
36. Meena Devi, Aged- 41 Years,
S/o Sh. Rajender Singh,
Working as N.O.
R/o H.No.A5A-147, Janak Puri,
New Delhi-110058 ...Applicants
(By Advocate: Shri Yogesh Sharma)
Versus
1. NCT of Delhi
Through the Chief Secretary,
New Sectt. I.P. Estate, New Delhi.
6 OA No.1875/2016
2. The Secretary,
Directorate of Health Services,
GNCT of Delhi, 9th Floor,
Delhi Sectt. I.P. Estate,
New Delhi-110002.
3. The Special Secretary (HR),
Directorate of Health Services,
GNCT of Delhi, 9th Floor,
Delhi Sectt. I.P. Estate, New Delhi-2. ... Respondents
(By Advocate: Shri Vijay Pandita)
ORDER
By Hon'ble Ms. Nita Chowdhury, Member (A) MA No.1833/2016 This application has been filed by the applicants for joining together in a single application.
2. For the reasons mentioned in the MA, the same is allowed. OA No.1875/2016
3. This Original Application (OA) has been filed by the applicants claiming the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 16.02.2016 (Annexure A-1) declaring to the effect that the whole action of the respondents not considering the request of the applicants for granting notional appointment from the date of appointment of similarly situated persons in Dec.2003 for the purpose of granting the old pension scheme at par with the similarly situated persons appointed in the same selection and from the same advertisement, is illegal, arbitrary, against the principle of natural of justice and violates Art. 14 and constitution of India and consequently pass an order directing the respondents to grant the notional appointment to 7 OA No.1875/2016 the applicants w.e.f. 01.12.2003 i.e., from the date of appointment of similarly situated persons of same selection and to extend the benefits of old pension scheme to the applicants, which was application prior to 01.01.2004 with all consequential benefits.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants with the costs of litigation."
4. The facts, in brief, are that the Department of Health & Family Welfare, GNCT of Delhi invited the applications for various posts in the Directorate of Health Services (DHS) and in different hospitals in Employment News dated 28th September-October, 2002. As applicants fulfilled all the conditions and eligibility criteria, they applied in November, 2003 for the said posts and were selected. Thereafter, they were sent for their posting to different hospitals under the DHS. It is submitted that most of the hospital gave posting immediately after completion of all the required formalities, but in their case delay occurred due to administrative reasons and police verification and hence they were given offer on 01.01.2004. They have also mentioned that Government of India introduced New Pension Scheme (NPS) w.e.f. 01.01.2004 and it was decided to apply NPS to all those who have been appointed after 01.01.2004.
5. They have further submitted that similarly situated and even juniors to the applicants who were selected in the same selection were given appointment/posting prior to 01.01.2004 and have been placed in the Old Pension Scheme (OPS), whereas applicants have 8 OA No.1875/2016 been denied benefit of the same because they were appointed after 01.01.2004 which is illegal and discriminatory in the eyes of law. Being aggrieved by the said order, applicants had earlier filed OA No.4515/2015 before this Tribunal which was disposed of on 11.12.2015 by passing the following order:-
"2. Learned counsel for the applicants has submitted that the applicants made a representation to the respondents on 28.08.2015, but the same has not yet been decided by them. Verbally the applicants have been informed that the respondents are granting relief to those who approached the Tribunal. Learned counsel also submitted that he would be satisfied if directions are given to the respondents to decide their representations within a given time frame made by the applicants.
3. We dispose of this O.A at the admission stage itself without going into merits of the case and without issuing notice to the respondents with a direction to them to consider and dispose of the representations dated 28.08.2015 of the applicants within a period of 60 days by means of reasoned and speaking order.
4. The applicants shall have the liberty to challenge the decision of the respondents, if they are still aggrieved.
5. No costs".
Thereafter, respondents passed impugned order dated 16.02.2016 indicating the same reasons that due to administrative delay, they could not be offered appointment before 01.01.2004. They have also relied on the OM of DOP&T dated 26.04.2004 and stated that they are not entitled to the benefit of the OPS. In the meantime, applicants filed CP bearing No.195/2016 in OA No.4515/2015 which was disposed of as having become infructuous. They have thus prayed that the OA be allowed.
6. The applicants have relied upon the following judgments:- 9 OA No.1875/2016
(i) OA No.1869/2011 - Rabinder Kumar Pattanayak Vs. U.O.I. & Others decided on 11.12.2013 by the Central Administrative Tribunal.
(ii) OA No.1205/2012 - Vidya Prakash and Others Vs. Govt. of NCT of Delhi and Others by the Central Administrative Tribunal.
7. The respondents have filed their reply and submitted that the OA is not maintainable in view of an identical and similar matter dismissed by the Bombay Bench of this Tribunal in OA No.267/2010 titled as Sh. Atul Pandey vs. UOI. Para 20 of the said order reads as under:
"20. The applicant has never challenged the delay in issuing the offer of appointment. His first representation is of the year 2004 whereby he simply requested the authorities to cover him under the old Pension Scheme of 1972. He made his next representation in this regard in the year 2008. It is evident from the chart given at Para 4.6 of the OA that the applicant had not been singled out in respect of issuance of the offer of appointment in February, 2004. One Mr. Pankaj Kumar Singh was also given the offer of appointment in March, 2004. Had the applicant approached a competent Court of Law along with other similarly situated candidates who got their appointment in 2003 at the relevant time, and had the Court of Law granted the relief to give retrospective effect to his appointment from the date others were appointed, he could have claimed the benefit of old Pension Scheme which was in force till 31.12.2003. Having not done so, it is not open to him to claim any relief to the extent that he should be covered."
8. They have further submitted that the OA is hit by delay and latches as the cause of action arose sometime in March 2004 whereas present OA has been filed in 2016. The applicants have given representation dated 28.08.2015. Further, they have submitted that the OA is time barred and highly belated, therefore, the same cannot be entertained.
10 OA No.1875/2016
9. It is further submitted that the Hon'ble Supreme Court of India has laid down the law in a catena of judgments that an aggrieved party has to approach the court within the statutory period prescribed and after the expiry of that period, the Court cannot grant the relief prayed for. This view was held in the case of State of Punjab vs. Gurdev Singh (1991) 4 SCC 1. The same view was reiterated in the case of UOI vs. Ratan Chandra Samanta, JT 1993 (3) SC 418. In the case of Ex-Captain Harish Uppal vs. UOI, JT 1994 (3) 126, the Hon'ble Supreme Court of India has categorically laid down the law that "delay defeats equity and the Court should help those who are vigilant and not those who are indolent. The parties are expected to pursue their rights and remedies promptly and if they just slumber over their rights, the court should decline to interfere. They have also relied upon the judgments in the case of Ratan Chandra Samanta Vs. UOI JT 1993 (3) SC 418, U.O.I. Vs. M.K. Sarkar 2010 (2) SCC 59 and D.C.S. Negi Vs. U.O.I., and Others.
10. They have further submitted that the applicants had applied for the post advertised in the year 2002 by the DHS . After being selected in November, 2003, their appointments were delayed due to administrative reasons and were appointed after 01.01.2004. Since NPS was introduced w.e.f. 01.01.2004, hence these applicants were placed in the same NPS. They have also submitted that in view of decisions passed in OA No.1205/2012 titled as 11 OA No.1875/2016 Vijay Prakash and Others Vs. The Chief Secretary, GNCTD & Others and OA 1795/2011 titled as Lalit Kumar and Others Vs. MCD, they requested to grant them notional appointment w.e.f. 01.12.2003 or from the date of appointment of similarly situated persons of the same advertisement. The matter was examined upto the level of Special Secretary and it was held that "date of appointment is sacrosanct and cannot be altered, therefore, new pension scheme is applicable". They have thus prayed that the OA be dismissed.
11. The respondents have relied upon the following judgments:-
(i) The Hon'ble Apex Court in State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC 436.
(ii) Central Administrative Tribunal in OA No.267/1910 titled as Atul Pandey VS. The U.O.I. & Others decided on 13.07.2012.
12. We have heard the learned counsel for the parties and gone through the pleadings and judgments.
13. The issue involved in this case is whether applicants who had been given benefit of NPS can claim benefit of OPS. The same very issue was decided in the case of Vidya Prakash (supra) by a Coordinate Bench of this Tribunal, wherein it has been held as under:-
"8. Again in Amarjeet Singh & Others, the Apex Court has held as under :-
26. There is another aspect of the matter. The appellants and the respondents have been considered by the DPC held on 19.12.1998 to fill up 42 vacancies under 12 OA No.1875/2016 the unamended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the unamended Rules on the criterion of "merit". The respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., "Seniority subject to rejection being unfit".
Indisputably, these 12 officers/respondents were found unsuitable for promotion under the unamended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the appellants had been given notional promotion w.e.f. 6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000.
9. In the above facts and circumstances of the case, we allow this OA with the direction to the respondents to grant notional seniority to the applicant as per their respective positions in the merit list prepared by the DSSSB in the year 2002. They shall also be given appointments on notional basis from the dates the first general category official has joined duty. Consequently, they will be entitled for notional increments and fixation of pay and other benefits like GPF, Pension, etc. as admissible to their batch mates belonging to the unreserved category. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. There shall be no order as to costs."
3. In view of the above position, learned counsel for the respondents Ms. Alka Sharma, fairly admitted that the aforesaid judgment squarely covers the present case also. We, therefore, allow this OA and direct the respondents to extend the same benefits to the applicants herein as given to the applicants in OA No.1795/2011 (Supra) within a period of two months from the date of receipt of a copy of this order". Thus, the applicants claim that they are entitled to the benefit of OPS due to administrative error/delay which has occurred on the part of respondents, has some force.
13 OA No.1875/2016
14. The applicants have sought to differentiate their case by pointing out that their delayed appointment was due to delay in the respondents decisions. No delay in asking for the relief was due to the conduct of the applicants themselves. The reality in this case is that the respondents have themselves admitted that the delay in appointments of persons selected in the same selection, i.e. some appointments were done before December, 2003 and some after 01.01.2004 was due to delay, which occurred at the level of the respondents themselves. Hence, the applicants should not be made to suffer due to delay at the hands of the respondents themselves. In the peculiar facts and circumstances explained in this case, we do find an admission of the respondents that the delay was definitely not due to any action/inaction of the applicants.
15. However, there is no clear cut information with regard to each applicants seniority position in the selection list and whether anyone junior to them was allowed to join before them.
16. Hence, in the peculiar circumstances of this case, we direct the respondents to verify as to whether some juniors to the applicants in the merit list have been appointed before them and if that junior has been held entitled to the OPS, then the same decision would be applicable to them. The respondents are directed to consider the cases of each individual applicant separately and then in the facts and circumstances of each case pass a reasoned 14 OA No.1875/2016 and speaking order as to whether to give the benefit of Old Pension Scheme where persons junior to them, from the same selection have been given the same benefit of OPS. The orders with regard to the present applicants be passed within a period of 12 weeks from the date of receipt of a copy of this order, under intimation to them.
17. The OA stands disposed of with the above directions. No costs.
(NITA CHOWDHURY) (V. AJAY KUMAR) MEMBER (A) MEMBER (J) Rakesh