Central Administrative Tribunal - Kolkata
Uday Mandal vs Eastern Railway on 18 April, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/468/2022 Date of Order: 18.04.2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member In the matter of :
Uday Mandal, Son of Patanu Mandal, aged about 42 years, working as Gate Keeper under Engg./P.Way/AZ, residing at QN-188/B, Azimganj East Colony, PO Azimganj PS Jiaganj, Dist Murshidabad, Pin 742122 (W.B) (Mob No. 81450363283) deeeeeees Applicant
-Versus-
1. . Union of India through the General Manager, Eastern Railway, Fairlie Place, Kolkata -- 700001.
2. The Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata -- 700001.
3. The Sr. Divisional Personnel Officer, Eastern Railway, Howrah, PO+PS Howrah -- 711101.
4, The Secretary to the Government of India, Ministry of Personnel, Public Grievances - and Pension, Department of Personnel and Training, North Block, New Delhi
-- 110001. -
keneees Respondents For The Applicant(s): Mr. A. Chakraborty, Mr, Arpa Chakraborty, Ms. P. Mondal; Counsel For The Respondent(s): Ms. D. Ghosh Dastidar, Counsel ORDER(ORAL
- Per: Ms. Bidisha Banerjee, Member (J) Heard Ld. Counsels for both sides.
2. This application has been preferred to seek the following relief:
"(a} Ant arder do issue directing the respondent nas. Land 2 to issue directions to the Competent Authority to grant scope of switching aver to Old Pension Scheme in favour of the applicant an immediate basis for extending and effecting coverage of his case under Central Services {Pension)Rule 1972 in place of National Pension Systent at-an earliest, (6) Te grat Costs and incidentals.
{c} Any other order or orders as the Hon'ble Tribunal deems fit and proper."
This matter is taken wp by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties.
3, The applicant herein had applied against a Joint Employment -- Notice bearing no. ER/1/2001 SPL by the Eastern Railway for which he » appeared in the Written test, as well as in PET, in the month of duly and December respectively in the year 2003. The applicant was thereafter declared successful and the selection process wag completed before 01.01.2004 when the Old Pension Scheme was in effect. However, he was offered appointment only after 01.01.2004, Le. on 26.02.2004, when the New Pension Scheme came into effect, 4, At hearing, Ld. Counsel for applicant would vociferously argue that, since the vaeancies in question arose before the notification was issued with an implied promise of coverage under ald yvules, and, as the selection was completed before 01.01.2004, ie. before the introduction of New Pension Scheme (NPS in short) of 01.01.2004, but the orders could only be issued after 01.01.2004 on account of delay caused by. the concerned authorities, his client should be covered by the Old Pension Rules of 1972, in terms of the DOPT notification dated 17.02.2020 itself. \ fad Further in support, Ld. Counsel would cite the decision of the Howble High Court at Delhi in WP (C) No. 2810/2016 in the case of Inspector Rajendra Singh & Ors, va. UOT & Ors. rendered on 27.03.2017 wherein the petitioners who were recruited after 01.01.2004, against vaeancies that occurred before 01.01.2004 were declared as eminently entitled to be covered by the Old Pension Rules and that bringing them into the ambit of New Pension Scheme of 2004 in bad in aw. Ld. Counsel for applicant would alse place the decision of Honw'ble Apex Court in the case of UOL Vs Shabad Prakash Punia SLP () SN S\ No. 7879/2021 and batch cases where the petitioners who had applied pursuant to the notification dated September, 2003 and June, 2003 for the post of Constable/GD in Central Armed Police Forces and Sub- Inspectors through Staff Selection Commission, and had qualified in the said examination of 2003, sought for benefits under Old Pension Scheme ander the CCS (Pension) Rules, 1972, whereas, the New Contributory Pension Scheme that was introduced by a notification dated 22nd December, 2003, and implemented with effect fram ist January, 2004, was applied.
Hon'ble Court found that the batch mates of the most of the petitioners have been given the benefits of Old Pension Scheme under various judgments passed by the Court as under:
(i} - Patil Gopal Babulal & Ors. vs. Union of India & Ors., W.P. {C) 11646/2018;
(i) Tanaka Ram & Ors. vs. Union of India & Ors. 2019 (174) DRY 146 (DB);
(184) Shyam Kumar Choudhary and Ors. vs. Urdon of India being W-.P. (C } No. 1358 of 2017 and {iv} Niraj Kumar Singh & Ors. vs. Union of India & Ors,, WP. {C ) No. 13129/2019.
The Hon'ble Court therein held as under:
"R. The issue in the present batch of matters is no longer res integra. Consequently, the request for additional Ume to file counter-affidavit ts declined.
9 in the case of certain constables af the BSF, his Court by its judgment dated 12%. February, 2019 in Tanaka Ram (supra) allowed the prayer of those. Petitionars and permitted theny to avail of the benefit of the Old Pension Scheme lt was held that the optian. te continue the Old Pension Scheme should be extended to all thase who has been selected tu the examination conducted in 2003, but were issued call letters only in Janrary ar February, 2004: If is also pertinentto mention that the Respondents aggrieved hy the Said judgment filed an SLP bearing No: 5228/2019 before the Apex Gourt The said SLP has been dismissed by the Supreme Court vide order dated G2 Septeniher, 2019.
1@. This Court in Shyam Kumar Choudhary and Ors. vs, Union of india being WLP(C) No, 1258 of 2017 allowed similar petitions vide Judgment dated. 39" April, 2019 against which the Respanients had again filed SLP bearing ho. SLSS S201 which-was again dismissed on 27° September, 2029. The Respondents thereafter chose to file a review petition bearing no, 2188/2020 before the Apex Court in the said matter and the suid Review petition was also dismissed on merits vide order dated 24% November, 2020. id. Following the judgment of Shyam Kumar Choudhary fsupra), the learned predecessor Division Bench in Niraj Kumar Singh and Ors, Vs. Union of India & Ors, WOP.(C) No, {3129/2019 granted similar benefit ta 17 petitioners whe had applied fo the post of Sub-inspectar in Central Police Organisations pursuant to an advertisement dated 21" June, 2002 even when the written examination and physical efficiency test were hebl in November, 2003, medical examination was held ta January-February, 2004 and final result was declared in May, 2004. The. said 17 petitioners: were issued offer of appointment on G2" fune, Z005 and an accepting the same, the appointment letter was issued on 14" July, 2005 far jolning the Sashastra Seema Bal.
ds. Another Coardinate Bench vide judgment dated 06% November, 2020 tn WeEI{C} No. 6546 of 2020 as well as 6989/2020 wes pleased to allow the said petitions far grant of Old Pension Scheme hy following the judgment in Shyam Ruamar Choudhary (supra).
i3. Having regard te the fact Ut in the present hatch of eases aise. the advertisement/notification was issued in Seutember 2002 and fune. 20038 Le. prigr to coming: inte force of the present contributary pension scheme on 22° December, 2003, this Court is of the view that petitioners cannot he denrived of the benefit of the id Pension Scheme, 14 This is more so when the hatchmates of the petitioners are getting this benefit under various judgments passed by this Court nas For the above reasons, the petitioners are allowetl. Respondents are directed to extend the benefit of Old Pension Scheme to each of these Petitioners and pass consequential orders within a period af eight weeks from today.
26, Accordingly, the writ petitions along with pending applications stand disposed of"
The decision was rendered on 15.01.2021 by the Hon'ble High Court.at New Delhi and the decision in one of such Writ Petitions hearing No. WP (C}9252/2020, was assailed before the Hon'ble Apex Court in SLP No. 7373/2021 but the SLP was dismissed on 09.07.2091.
5. 'Therefore, Ld. Counsel for the applicant would vociferously contend that the issue has attained a finality that, where the vacancies arose and the notification to fill up vacancies was published before 01.01.2004, the recruitment process was also initiated as also the results were published prior to 01.01.2004, but the appointment letters could be issued only after 01.01.2004, the incumbents would still be governed by the Old Pension Rules of 1972, as in the decisions quoted supra. Ld. Counsel would also refer to the judgment of this Tribunal :
in O.A. 1815 of 2021 (Prem Kumar Vs SE Railway) and analogous matters which is taken on record.
6. Ld. Counsel for respondents would fairly agree that the matter can be remanded back to the authorities for a fresh consideration in the light of the decision in Inspector Rajendra Singh & Ora. vs. UOL & Ors., as well as in Shabad Prakash Punia & Ors. vs. UOI & Ors. referred to supra.
"Therefore, the instant O.A. is hereby be disposed of with a direction upon the respondent authorities to consider the representation of the applicant dated 29.05.2020 (at Annexure A-5 to the O.A) and to address the grievance of the applicant in the light of the DoPT O.M. dated 17.02.2020, as well as, the decisions cited supra and to pass an 3 appropriate order within 8 months from the date of receipt of a copy of this order.
7. The O.A., accordingly, stands disposed of. No costs.
(Bidisha Banerjee) Member WJ) Us .