Central Administrative Tribunal - Delhi
Neelam Dhiman vs North Delhi Municipal Corporation on 13 September, 2022
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O.A. No. 3911/2018
Item No. 18
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3911/2018
This the 13th day of September, 2022
Hon'bleMr. Ashish Kalia, Member (J)
Smt. Neelam Dhiman
Aged 55 years
Ex-Councillor, Ward No. 73, N.D.M.C
Designation: Public Health Nurse
W/o Sh. Ranjan Dhiman
R/o A-762, Shastri Nagar,
Delhi- 110052
Group-B
.....Applicant
(Advocate: Mr. Gagan Gandhi with Ms. Ratakshi
Sarvaria)
Versus
North Delhi Municipal Corporation
Through The Commissioner
Dr SPM Civic Centre
J.L.N. Marg, Minto Road
New Delhi- 110002
....Respondent
(Advocate: Mr. R K Jain)
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O.A. No. 3911/2018
Item No. 18
O R D E R (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) In the present Original Application, following reliefs have been sought:
a. "Quash the impugned order dated 10.07.2018 of the respondent whereby request of the applicant i.e. Smt Neelam Dhiman for treating her resignation as retirement being arbitrary, malafide, discriminatory and illegal. b. Direct the respondent to treat the Resignation dated 21.03.2012 of the applicant as Voluntary Retirement with effect from 21.03.2012. c. Direct the respondent all the retirement benefits (including pension, medical, gratuity etc) along with interest calculated @ 18% per annum from the date of retirement i.e. 21.03.2012 till the disposal of this application. d. Allow the cost of this application to the applicant. e. Pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in the favour of the applicant and against the respondent."
2. The applicant, who is working as a Nurse with erstwhile unified MCD on 23.05.1985. She has been promoted as Public Health Nurse (PHN) in the year 1997. She has put her papers for resignation on 21.03.2012 by giving three months notice, in lieu of that, she has paid the salary for three months, which comes to around 2,09,217/-. She was relieved after five days on 26.03.2012. Thereafter, she fought an election and succeeded also. She has made a representation on 21.03.2018, converting her application for resignation into VRS (Voluntary Retirement Scheme) from service vide letter dated 29.02.2016. This matter was considered for conversion from resignation to VRS by one of the council members and submitted:
3O.A. No. 3911/2018 Item No. 18
"Whereas, the department has got Rs. 2,09,217/- deposited in lieu of the notice period for resignation.
Whereas, there is no rule which requires notice for resolution before resignation for permanent Government servants as it becomes effective from the date of acceptance.
Whereas, the general rule, therefore, is that a resignation of a government servant from a service should be accepted, except in the circumstances indicated below:
(i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightaway but only when alternative arrangements for filling the post have been made.
Whereas, the above shows that it is not the Government servant who has to serve resignation notice with fixing time limit for acceptance, but it is the Government who should make alternative arrangements for filling of the post to be vacated on acceptance of the resignation of the Government servant, first and then to accept the resignation. Whereas, on the other hand, under provision of FR-56(K), the Government servant seeking VRS is required to give not less than 3 months notice. Whereas, from the action of the department to get deposit Rs. 2,09,217/- from Smt. Neelam Dhimaan in lieu of 3 months notice, as a pre-requisite for acceptance of her resignation is not covered under the resignation rules. Whereas, the 3 months notice is pre-requisite for VRS. Whereas, the above facts lead to the candid conclusion that Smt. Dhimaan has fulfilled the conditions of VRS, legally, so much so that she has deposit 3 months salary amounting to Rs. 2,09,2017/- in lieu of notice period for VRS and by accepting the same the action of the department to treat her application as resignation from the service showed that they have acted upon against service rules for which they have no powers. Instead of the department should have asked her to wait till arrangement against her post been made, it her application has been treated as for resignation. Whereas, under the peculiar circumstances, as existed, the department by accepting payment, against 3 months notice required for VRS which is not available under the accepting resignation, there appears every reason for to treat her (Smt. Neelam Dhimaan) application for resignation (Which was the result of not being accustomed to the service rules and her selection as BJP candidate for Municipal Election, at the eleventh hour), as for VRS with effect from 21.03.3012(FN) extending all the pension and other terminal benefits."
"Item No. 17: Treating of Resignation as V.R.S. Smt. Neelam Dhiman. Mpl. Councillor Ward No. 73, Ex-Public Health Nurse.
Shri Yogender Chandolia moved and Shr. Virender Babbar seconded the following motion:
Resolution No. 282 Resolved that as recommended by the Standing Committee vide its Resolution No. 201 dated 28.10.2015, the resolution moved by Shri. Yogender Chandolia and seconded by Shri. Virender Babbar regarding treating of resignation as VRS Smt. Neelam Dhiman, Mpl. Councillor, Ward No. 73, Ex-Public Health Nurse, be approved. The motion was carried."4 O.A. No. 3911/2018 Item No. 18
which was considered vide letter dated 29.02.2016. Ultimately, it is observed that the matter should be referred to the DoP&T. DoP&T has observed:
"2. On receipt of references from Health Department, North Delhi Municipal Corporation (NDMC) the same were returned to them with a request to process the case as per procedure, enclosing the same. A copy of the latest reference is enclosed.
3. As already mentioned by NDMC also that there is no such rule for conversion of resignation into Voluntary Retirement, there is no role of DOPT and matter needs to be decided by NDMC, itself."
3. Thereafter, the Administrative Officer of North Delhi Municipal Corporation (NDMC) has passed office order dated 20.07.2018, rejecting the claim of the applicant for conversion from resignation to VRS, which is impugned by making a representation dated 28.11.2014, which was rejected.
4. Notices were issued to the counsel for respondents to put appearance. He has filed the detailed reply also. The request of the applicant was forwarded to Law Department of the respondents, which has opined, there is no such position in the relevant rules vide which resignation once accepted by the Competent Authority in 2012 can be converted by Corporation on the basis of facts and resolutions dated 27.11.2015, supra. 5 O.A. No. 3911/2018 Item No. 18 It is further stated, however, the Department has taken up this matter with the DoP&T. There is no rule, observed by the DoP&T, hence, the impugned order has been passed. Heard counsel for the parties at length and perused the records as also legal position.
5. A short question raised by the applicant in the present Original Application is whether the resignation letter after accepting by the Competent Authority could be converted into VRS (Voluntary Retirement Scheme) or not. In support of this, learned counsel for the applicant is submitted that it is a legitimate expectation of the employee concerned that after rendering more than 15 years of service, she should get the pension and if she is otherwise, entitled and referred the judgement passed by the Hon'ble High Court 'Najma V/s Govt. of NCT of Delhi' W.P. (C) 8956/2020, and where the estoppel has been defined by the Hon'ble High Court. The learned counsel has try to cover his case that once the case of the applicant has been considered by the respondents, the same has to be decided one way or other, it is, thus, the doctrine of estoppel comes into plea.
6O.A. No. 3911/2018 Item No. 18
6. Learned counsel for the respondents negated the stand taken by the applicant herein. Since there is no rule for accepting conversion from resignation to VRS. Thus, the Competent Authority after taking legal opinion has rejected the same. Learned counsel for the applicant has also relied upon the judgement passed by the Apex Court, in the matter of Assistant General Manager and others V/s Radhey Shyam Pandey, (2020) 6 Supreme Court Cases 438:
"f. DGM had no such wide and arbitrary power to defeat just claim of employees for pension on completion of 15 yrs of service, which was their right- Pension was essence of Scheme and depriving employees would be unauthorised, patently violative of Arts. 14,16 and 21 of the Constitution-Pension-Entitlement to pension-Constitution of India. Arts. 14,16 and 21. D. Service Law- Retirement/Superannuation-Voluntary Retirement-Voluntary retirement scheme (VRS)- SBI accepting VRS Scheme as approved by Government and floated by IBA in terms of which pension was payable to employees in accordance with Pension Rules on completion of 15 yrs of pensionable service- However, in terms of Pension Rules, pension was to b granted in case of voluntary retirement on completion of 20 yrs of service- Bank failing to amend relevant Rules- Effect- h. Held, once VRS was accepted by SBI it was incumbent upon it to amend Rules- Further held, having accepted proposal of Government, it would by violative of Arts. 14 and 16 of the Constitution to permit it to wriggle out of its obligation under guise that relevant Rules were not amended or pension was not admissible as per existing rules, especially when Scheme provided for eligibility of pension on completion of 15 yrs of service which formed independent contract.
Bank cannot be permitted to deny benefit of pension, a right which had accrued to employees in view of memorandum and resolution passed by Central Board of Directors adopting SBI- VRS-Pension Fund Rules- Rr. 22(i) (a) and 8- Constitution of India, Arts. 14 and 16."
7. Learned counsel try to impress this Tribunal by completion of 15 years of service. The applicant's request, 7 O.A. No. 3911/2018 Item No. 18 whereas, should have been accepted for the conversion from resignation to VRS and pension should be released to him.
8. In the facts and circumstances of the aforesaid case, Mr. Radhey Shayam Pandey, respondent no. 1, has actually resigned from service. Thus, the aforesaid judgement relied upon by the applicant's counsel is of no help. The applicant, State Bank of India, has formulated a VRS' Scheme in terms of which the said respondent has applied for it. The Hon'ble Apex Court has allowed the case, which is not the case in hand.
9. In view of the above facts and circumstances of the case and legal position discussed, this Tribunal is of the view that the present OA lacks merits and the same is liable to be dismissed. Hence, dismissed with no order as to costs.
(Ashish Kalia) Member(J) /aks/