Central Administrative Tribunal - Delhi
T.M. Sampath & Others vs Union Of India Through on 8 February, 2010
Central Administrative Tribunal Principal Bench OA No.2037/2008 New Delhi this the 8th day of February, 2010. Honble Mr. Shanker Raju, Member (J) Honble Mr. N.D. Dayal, Member (A) T.M. Sampath & Others -Applicants (By Advocate Shri A.K. Behera) -Versus- Union of India through: 1. The Secretary, Ministry of Water Resources, Govt. of India & Ex-Officio Chairman, Governing Body of NWDA, Shram Shakti Bhawan, Rafi Marg, New Delhi. 2. The Director General, National Water Development Agency, 18-20, Community Centre, Saket, New Delhi-110017. 3. The Secretary, Dept. of Pension & Pensioners Welfare, Ministry of Personnel, Public Grievances & Pensions, Lok Nayak Bhawan, New Delhi. 4. The Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. -Respondents (By Advocates Shri R.N. Singh and Sangita Rao for Shri R.V. Sinha, Advocate) O R D E R Honble Mr. Shanker Raju, Member (J):
Pension not being a bounty is a Fundamental Right guaranteed under the Constitution of India to a Government servant, as held by the Apex Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145.
2. Applicants, who are holding different designations and different posts in National Development Water Agency (NDWA), by virtue of this OA have assailed the decision of the Governing Body dated 30.3.2000 as disclosed in an information sought under Right to Information Act, 2005 dated 18.7.2007 as well as D.O. letter dated 16.3.2000 referred to in the above decision, whereby request of applicants to switchover to pension Scheme pursuant upon OM dated 1.5.1987 issued by Department of Pension and Pensioners Welfare has been turned down. Applicants have also sought a direction to changeover from CPF Scheme to Pension Scheme w.e.f. 1.1.1986 with all consequential benefits.
3. At the outset, respondents have taken a preliminary objection as to the cause of action being barred by limitation, delay and laches on the ground that whereas the OM relied upon is of 1.5.1987, yet few of the members who were associated in the 30th meeting of the Governing Body having knowledge of the resolution passed by the respondents on 30.3.2000, cannot resort to a cause of action on the basis of RTI information after 8 years to file the above OA.
4. On the other hand, learned counsel of applicants Shri A.K. Behera stated that pension a deferred salary being a continuing wrong as monetary benefit is being deprived of to the applicants as well as Government being a model employer cannot take hyper technical plea to defeat the rightful claim of the applicants. When a challenge to the intimation of the minutes of the meeting and stand of the Ministry of Finance as back as in 2007is made, the OA is within limitation.
5. We have carefully considered the rival contentions of the parties on this preliminary issue. In Raghavendra Acharya v. State of Karnataka, (2006) 9 SCC 630 the Apex Court ruled that pension being akin to right of property it has a nexus and co-relation with the salary payable to the employee on the date of retirement. As also held in the backdrop of the fact that Tribunal exercises writ jurisdiction in Tridip Kumar Dingal v. State of West Bengal, 2008 (15) SCALE 232 that in a writ there is no upper or lower limit of limitation and it is at the discretion of the Bench.
6. Moreover, a recurring cause of action does not attract limitation, as held by the Apex Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648.
7. In the matter of limitation the power is discretionary and is to be liberally construed, as held by the Apex Court in Apangshu Mohan Lodh v. State Tripura, (2004) SCC (L&S) 10.
8. In Madras Port Trust v. Hymanshu International (1979) 4 SCC 176 the Apex Court ruled that technical plea has to be avoided by the Government as a model employer. As also held in Union of India v. Shantiranjan Sarkar, (2009) 3 SCC 90 that in the matter of limitation under Administrative Tribunals Act, Union of India cannot take advantage of wrong in an equitable relief.
9. Lastly, in writ jurisdiction, limitation is immaterial and the matter is to be heard on merits if reasonable explanation is tendered, as ruled by the Apex Court in Ravindra Nath v. State Bank of India & another, 2009 (1) SCALE 130.
10. With the above backdrop of the ratio decidendi (supra), applicants, who were in position on 1.1.1986 when IV Central Pay Commissions recommendations and subsequent OM of 1.5.1987 had come into being and before new Pension Scheme of 1986 has been introduced by the Government w.e.f. 1.1.1986 the respondents have not deemed applicants on adoption of the OM ibid as a pensioner, is a continuing cause of action, which is recurring and a decision taken in 2000 when not communicated to the applicants, the issue of option if not found to be noted to the employees not to be deemed as circulated as ruled by the Apex Court in Dakshin Haryana Bijlivitran Nigam v. Bachan Singh, 2009 (10) SCALE 293. A Fundamental Right of grant of pension does not attract limitation. Moreover, on an inaction, the Government is precluded from raising hyper technical plea to defeat the rightful claim of applicants, as such the case being good on merit and the order passed in 2000 since been reiterated to the applicants in 2007, we do not find the objection raised by the respondents as apt in law. Accordingly, the objection stands overruled.
11. A brief factual matrix transpires that the applicants, who have been appointed at various levels in the respondents organization which since been continued under the aegis of Societies Registration Act, 1860 had come into being in 1982 and headed by Ministry of Water Resources. The Governing Body is consisted of members of various Government of India departments and the participated Stated Governments. As late as in 2002 sanction has been given to continue NWDA in the 10th Five Year Plan and has been further continued. We also find on record gazette of India dated 30.10.2006 where NWDA scope of functioning and its activities have been enhanced on modification shows that this is almost a permanent body to be continued on Plan basis.
12. IV CPC recommendations have been implemented by the respondents. However, applicants at the time of appointment in their service conditions were governed insofar as their Central Provident Fund (CPF) Scheme is concerned by the CPF Rules of 1962. The respondents in 1982 framed their own Regulations as to the CPF under the bye laws of NWDA.
13. On 1.5.1987 the Department of Pension and Pensioners Welfare has promulgated a Scheme to changeover from CPF Scheme to Pension Scheme, as by that time CPF Scheme was in vogue since 1962 and the Pension Rules being promulgated in 1972, the Central Govt. employees who have been governed by the CPF Scheme were sought option and the last option being on 6.6.1985 it is found that certain employees continued under the CPF Scheme despite a recommendation of IV CPC that all CPF beneficiaries should be deemed to have come under the Pension Scheme w.e.f. 1.1.1986. Accordingly, it was decided that all CPF beneficiaries who were in service on 1.1.1986 will be deemed to have come over to the Pension Scheme. The only exception or the categories which have been opted out were Special Railway Provident Fund or Indian Ordnance Factory Workers Provident Fund or Indian Naval Dockyard Workers Provident Fund etc. where necessary orders were required to be issued by the respective Ministry. These orders would also not apply to scientific and technical personnel of department of Atomic Energy, Department of Space, Electronics and other scientific departments, including Ministry of Agriculture. However, clause 7.2 provides as under:
7.2 Administrative Ministries administering any of the Contributory Provident Fund Rules, other than Contributory Provident Fund Rules (India) 1962, are also advised to issue similar orders in respect of CPF beneficiaries covered by those rules in consultation with the Department of Pension and Pensioners Welfare.
14. Applicants, who have been fixed under IV CPC the respondents according to their own admission in their 21st meeting of 14.12.1990 though followed pension OM dated 1.5.1987 but with regard to the benefit of retirement/death gratuity by framing its own death-cum-retirement gratuity rules, in consultation with the nodal Ministry but made effective from 1.5.1987.
15. Before we advert to further facts, the bye laws relevant for our purposes are reproduced as under:
26 (a) The emoluments i.e. pay scales, allowances and revision thereof for the employees of the NWDA will be adopted with the approval of the Govt. of India in consultation with the Ministry of Finance (Department of Expenditure). However, approval of the Govt. of India need not be sought in regard to adoption of scales or pay & allowances identical to those adopted for corresponding posts as per the Central Govt. orders issued from time to time. xxx xxx xxx xxx xxx
28. Till such time as the Agency frames its own working rules and regulations governing service conditions of the employees of the Agency, the rules and orders applicable to the Central Government Employees shall apply mutatis-mutandis to the employees of the Agency subject to such modifications as may be made by the Governing Body from time to time provided that the powers of the Governments, Ministries and Departments of Govt. of India, will vest in the Governing Body and those of Head of Department will be exercised by the Director General. In case of any doubt in the application of any rules, the matter will be referred to the Governing Body whose decision will be final.
16. Applicants, who continued to represent to switchover to pension on deemed basis w.e.f. 1.1.1986 no orders had been issued by the respondents though in the Governing Body meeting held on 30.3.2000 after 13 years from the OM of 1987 of DoP&T came into being on a Ministry of Finance OM dated 16.3.2000, item 38.8 rejected the claim of applicants to switchover to pension on the ground that it cannot be applied to autonomous bodies. Applicants have sought RTI on 18.7.2008 whereby the decision of Ministry of Finance dated 16.3.2000 and the decision taken by the Governing Body was apprised to them. Hence the present OA.
17. Learned counsel of applicants states that as per the Pension OM paragraph 7.2 though the applicants were governed under the CPF Rules India, 1962 but the administrative Ministry, including Ministry of Water Resources who had adopted NWDA the CPF Rules of 1982 had been advised as a controlling authority to pass similar orders in respect of CPF beneficiaries in consultation with Department of Pension and Pensioners Welfare. In this backdrop the learned counsel while referring to the bye laws of NWDA, more particularly bye law 28 stated that till such time the Agency frames its own Rules and Regulations orders and rules applicable to Central Government employees shall have to apply mutatis mutandis to the employees of the Agency subject to modification by the Governing Body. It is stated in this context that only in 1990 the Gratuity Rules had come into being retrospectively from 1.5.1987. As such, in 1987 there were no rules framed regulating the pension and as Central Government had promulgated the OM of 1.5.1987 it was binding and the applicants are deemed to have opted by implication of not giving option by 30.9.1987 to be declared as pensioners under the Pension Rules of 1972 with all benefits.
18. Shri Behera also stated that this OM was scrutinized by the Apex Court on interpretation in Union of India v. S.L. Verma, 2006 (14) SCALE 56, which on all fours, covers the present issue.
19. Learned counsel would also vehemently contend that the applicants have been prejudiced as the respondents had not taken any decision immediately after promulgation of OM dated 1987 and took about 13 years to decide the issue and deprecated, being illegal, Ministry of Finance order, which according to them, cannot be applied retrospectively to decision taken by all administrative Ministries even in autonomous body way back in 1987 to deem their employees as pensioners under the Pension Rules from CPF Scheme.
20. Learned counsel of respondents would apart from limitation, which we have overruled, contended that a policy decision taken by the respondents when not malafide or violative of Articles 14 and 16 of the Constitution of India cannot be assailed in judicial review and has relied upon a decision of the Apex Court in Ekta Shakti Foundation v. Govt. of NCT of Delhi, AIR 2006 SC 2609. Learned counsel has also relied upon the decision of the Apex Court in P.U. Joshi and others v. Accountant General, Ahmedabad and others, (2003) 2 SCC 632. Reliance has also been placed on a decision of the Apex Court in Mullikarjuna Rao v. State of Andhra Pradesh, (1990) 2 SCC 707 to contend that interference and advisory sermons to the executive in the sphere, which is exclusively within the domain, is not legal.
21. Shri R.N. Singh stated that Government employees are given benefits of switchover to pension but it is not automatic for those working in the autonomous bodies and while relying upon bye law 26 (a) it is stated that in the matter of emoluments structure approval of Government of India is required. It is in this backdrop stated that as the respondent-Government, Ministry of Finance had advised not to apply Pension Scheme the decision is final, which is adopted by the Governing Body. Shri Singh stated that in case of CPF Rules framed by the NWDA in 1982 the same shall prevail over OM of 1.5.1987.
22. In rejoinder the pleas taken by the applicants are reiterated where it is stated that applicants who had a vested right to switchover to pension Scheme the subsequent adoption of rules on 14.12.1990 would not apply retrospectively and alter their conditions.
23. We have carefully considered the rival contentions of the parties and perused the material on record.
24. It is trite law that a policy decision of the Government is not amenable in judicial review but if the policy is against the Rules or Constitution it has to be interfered with, as ruled by the Apex Court in Villinaur Maiyam v. Union of India, (2009) 8 SCALE 310. When the policy decision is so irrational and arbitrary that it violates Fundamental Right of the Government servant under Article 14 of the Constitution of India, interference is mandated, as ruled by the Apex Court in President, Panchyat Union Council v. P.K. Muthuswamy and others, 2009 (10) SCALE 107. It is also mandated upon administrative authority to exercise power in a non-discriminatory manner, as held by the Apex Court in Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors., (2009) 7 SCC 734.
25. As ruled in Zenith Mataplast Ltd. v. State of Maharashtra, 2009 (12) SCALE 432 that an administrative authority should act fairly, legitimately above board without any affection or aversion. Favoritism, bias, nepotism and arbitrariness cannot be tolerated. When such allegations are made, Court being custodian of law, must examine it.
26. The respondents have referred to bye-law 26 (a) as a justification to hold that once in the matter of emoluments structure the same has to be adopted by NWDA on approval with the Government of India in consultation with Ministry of Finance. As such, when the Ministry of Finance has turned down the proposal on the ground that for autonomous bodies under various Ministries recurring financial implications are likely to be very substantial, disbursement is must. A decision taken on 16.3.2000 though not completely blocked grant of pension Scheme on Government of India pattern to autonomous bodies but an exception has to be referred to the department. No doubt, applicants are not Central Government employees but are employees of the Government in autonomous bodies, i.e. NWDA. A change from CPF to Pension Scheme by implication has been specifically ruled out from its ambit certain departments and Ministries but it does not specifically oust the jurisdiction of Autonomous Bodies of the Government. Accordingly, paragraph 7.2 of Pension OM dated 1.5.1987 refers not only to administrative Ministries having CPF Rules in promulgation but also other rules which are in promulgation have been advised to issue similar orders in respect of CPF beneficiaries. This leaves no doubt in our mind that on 1.5.1987, to which much later on in 2000 department of Expenditure has ousted the jurisdiction. The OM of 1.5.1987, which is a beneficial one and a welfare sub-delegation, cannot be overridden by Ministry of Finance advice, which may be treated as an executive order, would have no retrospective application. Moreover, as per bye-law 26 (a) the emoluments structure though refers to pay scales and allowances and revision thereof, yet it does not include specifically either CPF or pension. However, the latter part of bye-law 26 (a) exempts approval of the Government when there has been adoption of scales of pay and allowances identically to those adopted for corresponding posts as per the Central Govt. order. The logical purposive construction and interpretation is that assuming the emolument structure includes CPF and Pension, whatever has been prescribed for the Government servants by Central Government orders mutatis mutandis apply to the employees of NWDA, which falls under the aegis and control both administrative and financial of Ministry of Water Resources and for which no approval of Government of India is required.
27. However, as juxtaposition to the above, bye-law 28 mandates that the rules and orders applicable to Central Government employees shall apply mutatis mutandis to the employees of the NWDA subject to modification by the Governing Body concerning service conditions, including CPF and Pension. It is only in case of doubt that the matter has to be referred to the Governing Body for a decision.
28. If one has regard to the above provisions of bye-laws the applicability of Government Rules is till such time the Agency frames its own working rules though the respondents have promulgated CPF Rules of 1982, yet there is no provision to switchover or application of Pension Rules, as envisaged through OM of Pension Department on 1.5.1987. In such view of the matter, when there is no working rules and regulation as to conversion from CPF to Pension Scheme and grant of pensionary benefits to the employees of NWDA what is applicable is the order passed by the Pension Department of the Central Government on 1.5.1987.
29. This provision when adopted deems an employee if he has not otherwise opted for CPF to be automatically converted into a beneficiary w.e.f. 1.1.1986.
30. We have also considered the fact that grant of gratuity etc. has been adopted by the respondents and a regulation framed in 1990 but with retrospect effect from 1.5.1987, which is nothing but a resort to Government of Indias orders, clearly shows that orders are adopted where the rules are not framed. There is no conflict in switching over from CPF to Pension by the employees of NWDA, as no such rules or regulations had been framed by the respondents. What is in vogue is CPF, but regarding pension and switching over as for want of rules, Govt. of Indias instructions dated 1.5.1987, more particularly in paragraph 7.2 would apply. It is not the case that the applicants do not acquire eligibility and fulfil the criteria.
31. As way back in 1987 switchover from CPF to pension was promulgated and was equally applicable to autonomous bodies. This is apparent from the fact that in S.L. Vermas in case of autonomous body, Bureau of Indian Standard Act 1985 promulgated through regulation 14 in 1988 the concept of pension, which has not been applied to the respondents on the ground that Ministry of Finance has observed this Scheme as a new one has been deprecated and rejected. This clearly indicates that the concept of pension, which was in existence by promulgation of CCS (Leave) Rules, 1972 by the Government has been reiterated and by way of last option on 1.5.1987 is not dependent on the whims and fancies of autonomous bodies. Moreover, as per pension OM dated 1.5.1987 the administrative Ministries are directed to issue similar orders for switching over on deemed basis from 1.1.1986, the benefit of pension to the employees only in consultation with Department of Pension and Pensioners Welfare, no consultation with Ministry of Finance is required. Moreover, what is required under bye-law 28 is mutatis mutandis application in respect of service conditions the rules and orders promulgated by the Central Government to their employees. However, this acceptability is absolute except modification made by the Governing Body. In the instant case right from the year 1987 till 2000 no consideration as per bye-law 26 (a) to adopt pension notification dated 1.5.1987 was done and belatedly in 2000 the proposal was examined and when it was not required on an unnecessary and irrelevant exercise when the issue relates back to 1.1.1986 on an advice of the Department of Expenditure dated 16.3.2000 rejected the demand on the ground that CPF as a one time payment pension is a long commitment on the part of the Government. There is nothing on record to show that Government has refused to finance the autonomous bodies and has stopped giving grant-in-aid. In such an event, respondents had not acted in accordance with their own bye-laws and rather arbitrarily without any justification rejected the claim of the applicants whereas the switchover option contained in Pension OM dated 1.5.1987 was also mutatis mutandis applied to NWDA.
32. A subsequent Government order, when a vested right has been accrued right of pension and switchover to the applicants cannot be defeated by application of executive order retrospectively as on 1.5.1987 and at best upto 30.9.1987 no impediment has been there for extension of benefits of switchover and grant of pension to the applicants a delayed action has certainly prejudiced the applicants and violated their Fundamental Right to get pension at par with their similar counterparts in Central Government. This is not only injustice but an arbitrary decision of the respondents when viewed with other autonomous bodies where pension has been applied also causes invidious discrimination, violative of Articles 14 and 16 of the Constitution of India. Such a policy decision on the touchstone of test of fairness fails and is amenable to be interfered with in judicial review.
33. Resultantly, for the foregoing reasons, the decision of the respondents impugned and their policy not to extend the benefit of OM of 1.5.1987 to the applicants cannot be countenanced in law. The OA is allowed. Impugned orders are set aside. Respondents are directed to implement OM dated 1.5.1987 in respect of applicants and treat them as covered under Pension Scheme in terms of CCS (Pension) Rules, 1972 w.e.f. 1.1.1986 with all benefits, as applicable to other Central Government employees within a period of three months from the date of receipt of a copy of this order. No costs.
(N.D. Dayal) (Shanker Raju) Member (A) Member (J) San.