Central Administrative Tribunal - Delhi
K.L. Juneja S/O Lakhmi Chand Juneja vs Union Of India (Uoi) Through Secretary, ... on 13 November, 2006
ORDER N.D. Dayal, Member (A)
1. The applicant retired on superannuation on 31.5.2005 from the National Thermal Power Corporation (NTPC), a Government of India Undertaking, New Delhi. He is aggrieved by the impugned order dated 4.5.2006 from the Central Water Commission (CWC), Government of India, whereby he has not been found entitled for the same benefit as other similarly circumstanced persons. He has, therefore, prayed for the following relief:
i) allow the present original application herein with costs.
ii) declare the order dt. 04.05.06 issued by the CWC, R.K. Puram, New Delhi as illegal and quash the same.
iii) declare the applicant entitled to the benefits of the judgments in the cases of Smt. Aruna Mehta & Others and 17 other cases mentioned in para 4.16 above, as he is similarly placed and similarly situated.
iv) declare the applicant entitled to pro-rata pension and other pensionary benefits including D.C.R.G., leave encashment etc. for about 13 years of service w.e.f. 04.10.65 to 30.09.1978 with Central Government/CWC before his absorption in NTPC.
v) direct the respondents to grant pro-rata pension, DCRG, leave encashment and other pensionary benefits to the applicant for the period of about 13 years of service w.e.f. 04.10.65 to 30.09.1978 with the Central Government/CWC with 18% interest thereon; and
vi) pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case to meet the ends of justice.
2. The applicant submits that before he was permanently absorbed as Assistant Engineer in the NTPC w.e.f. 1.10.1978, he has put in about 13 years of service from 4.10.1965 with the Central Government in various Power Stations/Projects and also with the CWC itself. He was also declared quasi-permanent as Supervisor. As such, he was entitled under the rules and as per law on the subject for pro rata pension and other pensionary/retirement benefits for the service of about 13 years from 4.10.1965 to 30.9.1978 before his permanent absorption with NTPC, but despite his representations to CWC no decision was forthcoming. On 24.8.1990 NTPC informed CWC that it was not for them to pay leave salary and pension contribution but no decision was forthcoming from CWC and instead after the applicant had filed OA No. 525/2006, CWC in compliance with the orders passed by the Tribunal examined the applicant's case only to reject the same in terms of the impugned order dated 4.5.2006.
3. A perusal of the impugned order shows that the applicant's service for about 13 years before absorption in NTPC from 1.10.1978 is not disputed. It is stated that the applicant was not entitled to pensionary benefits as he was a quasi-permanent employee on the date of absorption in NTPC. The applicant had quoted as precedent the cases of certain other persons who were granted pensionary benefits but this plea was not accepted stating that the orders passed in their cases were in person and not in rem and, therefore, could not be followed as precedent. When the Department of Pension and Pensioners' Welfare was approached for advice to allow benefit to other similarly circumstanced cases of quasi-permanent absorbees, that Department advised that since this involved a major policy question, relevant rules would have to be amended to extend the benefits to similarly placed persons who were not party to the CAT/Court cases.
4. The applicant submits that not only his service record and conduct as also his progression in service recommend his case but the same is also supported by rules. In terms of Rule 37 and Rule 48(2)(b) of the CCS (Pension) Rules, 1972 upon absorption in a post under a Corporation, a Government servant is deemed to have retired and if he has ten years of qualifying service before absorption, he would be entitled to pension. Besides, Department of Pension and Pensioners' Welfare OM dated 14.4.1987 states that quasi-permanent employees who retire on superannuation after service of not less than ten years shall be eligible for pensionary benefits as admissible to permanent employees under CCS (Pension) Rules, 1972. Even the distinction between permanent and temporary employees for grant of pensionary benefits no longer exists as per orders of the Government dated 28.3.1988. Technical resignation also does not entail forfeiture of service.
5. Applicant relies upon the case of Baleshwar Das and Ors. v. State of Uttar Pradesh and Ors. (1981) 1 SCR 44 and Praduman Kumar Jain v. Union of India 1994 Supp. (2) SCC 548 and states that as he was directly recruited, appointed for indefinite period, declared quasi-permanent, granted increments regularly and even crossed the efficiency bar, consultation with UPSC was not necessary in his case, and he has to be taken as having held the post in substantive capacity for the purpose of Rule 13 of the Pension Rules, according to which qualifying service commences from the date of taking charge of a post even if it be in officiating or temporary capacity and such appointment is followed without interruption by substantive appointment in the same or another service or post.
6. The applicant has recorded a list of 18 cases wherein based upon the judgments in the cases of Baleshwar Das (supra) and Praduman Kumar Jain (supra), the Tribunal granted pro rata pension and other pensionary benefits to the applicants therein who were similarly situated. Even 12% interest was also granted on arrears. Two of the decisions of the Tribunal were also confirmed by the Hon'ble High Court of Delhi and the Hon'ble Supreme Court. The applicant submits that in the case of Chootey Lal v. Union of India decided on 4.4.2006 in OA No. 54/2006 a response similar to the impugned order was received by the applicant therein informing that the Department of Pension and Pensioners' Welfare had not agreed to extension of benefit of the Tribunal's judgment to similarly placed non-applicants, but the Tribunal had rejected the same and directed grant of pro rata pension and arrears as per the judgment at Annexure A-9 noting that it was trite law that identically situated persons could not be meted out differential treatment.
7. The respondents in their counter reply have opposed the claim of the applicant taking various grounds based upon the applicant being quasi-permanent at the time of absorption in NTPC and hence entitled only to the benefit of Rule 11 of the CCS (Temporary Service) Rules, 1965, and that the matter being more than 27 years old, records are not easily traceable to determine what payments of gratuity were made to the applicant, as well as taking the ground that the case law cited by the applicant would not apply as precedent because the Tribunal's directions in those cases were in personam and not in rem. Even the rules quoted by the applicant have been contested as not being relevant to his case.
8. In rejoinder, the applicant has reiterated the arguments taken in the OA and made clear that no gratuity was paid to him, besides contending that he had been following up his case by representations but the only reply he got was of 4.5.2006 which has been impugned herein. He submits that non-payment of pensionary benefits is a recurring cause of action and denial in the face of similarly situated persons having been given the benefit would be discriminatory to him.
9. I have heard the learned Counsel for both sides and perused the pleadings. On direction during hearing of this case, the counsel for the applicant has prepared a chart of ten judgments of the Tribunal in the cases of similarly situated persons involving a total of 24 applicants and showing their year of joining ranging from 1968 to 1974, year of absorption ranging from 1978 to 1985 as well as the year of approaching the Tribunal many years later during the years 1997 to 2006, after a lapse of 13 to 28 years. He submits that the present applicant has also approached the Tribunal after a long period of time but this should not be held against him in the interest of justice because so many other persons have been extended the benefit despite similar delays, no doubt keeping in view that this is a question of grant of pension to which the applicant has an indefeasible right as it is not a bounty but a recognition of his long years of service.
10. The counsel for respondents nevertheless argued that the prayer of the applicant is hit not only by delay and laches but also by the bar of limitation for having approached the Tribunal disregarding the same and without clarifying the position in para 3 of the OA and after admitting in para 4.5 thereof of the passage of nearly 28 years since his absorption in NTPC. He relies upon the case of Ratam Chandra Samanta v. Union of India and states that the applicant has not shown in what manner he is similarly situated. I find that in the present case, the applicant has impugned order dated 4.5.2006 whereby his claim based on benefit extended to similarly situated persons was turned down. It is also seen that the respondents have themselves admitted that the applicant is similarly situated as the other persons in whose cases the Tribunal has already extended the benefits in terms of the judgments which have been annexed with the OA. A perusal of the judgment in Ratam Chandra Samanta (supra) indicates that there were two questions before the Apex Court - whether the petitioners who were casual labourers were entitled for re-employment; and whether they had lost their right, if any, due to delay. The Court was of the view that delay itself deprives a person of his remedy available in law, but although inclined to take a sympathetic view in the absence of any positive material to establish facts alleged by the petitioners, the Court found it fit not to exercise discretion and the petitions were dismissed. It is trite that delay defeats justice, but where a retired employee puts forth a rightful claim which relates to his pensionary dues, the same lends to him a recurring cause of action. Further, when the claim is based upon a plea of discrimination against similarly circumstanced persons it needs to be considered in the interest of justice. As per a Constitutional Bench decision in the case of K.C. Sharma and Ors. v. Union of India and Ors. 1998 (1) SLJ 54 (SC), where a person is similarly circumstanced, the benefit of the decision should be extended to him to avoid multiplicity of litigation and to meet the ends of justice.
11. I do not find any reason to differ with the views of the co-ordinate Benches by whose orders the claim preferred by the applicant in this OA has already been agreed to in those cases on the basis of similar grounds as have been urged herein.
12. In view of the above, the impugned order is set aside and the respondents are directed to release pro rata pension and other pensionary benefits as per rules to the applicant for the period of service rendered with the Central Government/CWC from 4.10.1965 to 13.9.1978 prior to absorption in NTPC, within a period of three months from the date of receipt of this order. The aforesaid shall be paid with interest also at the same rate of 12% per annum, as was allowed in the case of similarly situated persons, from due date till the date of actual payment. No costs.