Central Administrative Tribunal - Delhi
Dr. Shri Krishan Chand vs Municipal Corporation Of Delhi on 26 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 865/2010 New Delhi this the 26th day of March, 2010. Honble Mr. Justice V.K. Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Dr. Shri Krishan Chand, S/o Shri Sahukar Singh, R/0 WZ-90-B, Janak Park, Hari Nagar, New Delhi-110064 Applicant ( By Advocate Shri Umesh Singh ) VERSUS 1. Municipal Corporation of Delhi Through Commissioner, Town Hall, Delhi-110006. 2. Union Public Service Commission, Through its Chairman, Shahjahan Road, New Delhi. Respondents O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The applicant in this OA is before us regarding his grievance that he has been placed in the New Pension Scheme, which became operational from 1.01.2004, although he should have been given the benefit of Old Pension Scheme applicable under the CCS (Pension) Rules, 1972, notwithstanding the fact that the Old Pension Scheme ceased to be in operation from 31.12.2003.
2. The facts on which the Applicant is basing his claim are narrated hereinbelow.
3. The Applicant applied for selection to the post of Specialist Grade II under the first Respondent, Municipal Corporation of Delhi (MCD), in response to an advertisement in the Employment News of January 2003. The selection was made by the Union Public Service Commission (UPSC), the second Respondent, and the Applicant was informed by the UPSC, by letter dated 31.07.2003, that his name had been recommended to the MCD for appointment to the post of Specialist Grade II. The first Respondent-MCD gave an offer of appointment to the Applicant by letter dated 28.10.2003, asking him to give his acceptance by 14.11.2003. The Applicant gave his acceptance by letter dated 10.11.2003. He was then directed to appear before the Medical Board of Hindu Rao Hospital for medical examination. The Applicant finally received a letter dated 8.03.2004, directing him to report for duty, which he joined on the same day.
4. Meanwhile, the Union Government had initiated a New Pension Scheme, with effect from 1.01.2004, which replaced the existing Old Pension Scheme under the CCS (Pension) Rules, 1972. It seems that the scheme of pension under the CCS (Pension) Rules, 1972 ceased to be operative in the MCD also and, as per the case of the Applicant, Contributory Provident Fund (CPF) was introduced. Aggrieved by this, the Applicant is seeking the following reliefs:
(i) Direct the respondent to allow the applicant to join the old Pension Scheme as per the rules prevailing at the time of his final selection and recommendation for appointment i.e. 31st July 2003 with all consequential benefits, which have already been given to the others Doctors of his batch;
(ii) The respondent may further be directed to stay the deduction of the amount under the head of Contributory Provident Fund and in new pension scheme and previously deducted amount under the scheme of Contributory Provident Fund scheme may be converted into the General Provident Fund Contribution.
(iii) pass any such further order or direction as may in the facts and circumstances of the case deems fit and proper in favour of the Applicant and against the respondents;
(iv) allow the present application of the Applicant with costs.
5. The Applicants case is that he came to know about his being placed under the CPF scheme only in October 2009, when his contribution towards CPF was deducted from his pay in July 2009. A copy of the pay-slip of July 2009 issued on 14.10.2009 is placed at page 37 of the paperbook, in which contribution of Rs.7438/ towards CPF has been recorded. On inquiry, the Applicant was told that the Old Pension Scheme became inoperative from 31.12.2003 and since he had joined on 8.03.2004, he was not included in the Old Pension Scheme. He made a representation to the first Respondent on 18.01.2010 and served a legal notice dated 1.02.2010 also on the Commissioner, MCD. Therein the Applicant pleaded that he had been informed about his selection as early as 31.07.2003 by the U.P.S.C. He had given his acceptance also on 10.11.2003, which was handed over in the office of the Director (Personnel), MCD on the same date. The Applicants plea is that he was keen to join the post as early as possible and made several visits to the office of the first Respondent-MCD in order to hasten the processes. Other doctors selected along with him in the same batch were allowed to join on or before 31.12.2003 and they got the benefit of Old Pension Scheme. He has stated further that I repeatedly requested for processing my matter to expedite the required procedure at the earliest so that I could be able to join before the said date but to no avail. It was only the careless and irresponsible attitude of the officials of the Respondents office that his joining was delayed beyond 31.12.2003 and he missed the Old Pension bus. A contention has been raised in the legal notice dated 1.02.2010 that the Applicant has been discriminated against as the other candidates, who were selected in the same batch as him, have been placed in the Old Pension Scheme, applicable upto 31.12.2003. It is stated that the Applicant had visited the office of the Respondent-MCD personally to inquire about his being placed in the CPF scheme, he was told that he could not be brought under the purview of the Old Pension Scheme on some baseless and fake pretext. The representation and the legal notice did not elicit any response.
6. The learned counsel for the Applicant contended in his submissions before us that the vacancies pertained to the year 2002 and the selection process was over in July 2003 with U.P.S.C. issuing the letter dated 31.07.2003, recommending the Applicant and other candidates for the post. He would thus be entitled to all the benefits available on that date, i.e., 31.07.2003 regardless that he joined on 8.03.2004. His recruitment was made when the Old Pension Scheme was applicable and any subsequent amendment in the pension rules would not be binding on him. He cannot be denied the benefit of monthly pension and the General Provident Fund merely because he joined after 1.01.2004.
7. Reliance has been placed on the order of learned single Member of this Tribunal in OA number 1607/2009, Dr. Alka Chandra V. Municipal Corporation of Delhi and Another, decided on 23.10.2009. Dr. Alka Chandra had also been selected in the same batch as the Applicant. She had also made representations for inclusion in the Old Pension Scheme, as she had also joined after 31.12.2003 and had been included in CPF scheme. Her request for grant of pension had been rejected by an order dated 4.05.2009. The name of Dr. Alka Chandra was recommended by the U.P.S.C. for appointment to the post of Specialist Grade II in the M.C.D. by letter dated 31.07.2003. She was offered appointment by letter dated 3.02.2004 and asked to send her acceptance by 27.02.2004. She gave her acceptance before the prescribed time. She reported for duty on 12.04.2004. When the final seniority list of doctors was issued on 14.02.2008, she came to know about the date of joining of the candidates selected along with her for the post of Specialist Grade II and found that persons junior to her in the merit list had been allowed to join on or before 31.12.2003. The same arguments, as have been advanced in the instant case, were advanced in the case of Dr. Alka Chandra (supra) also. The Respondent-MCD had stated that the U.P.S.C. had desired that the caste certificate should be verified in case of SC/ST/OBC candidates. The Applicants caste certificate was, therefore, sent on 22.08.2003 to the concerned officer, who issued the certificate, for its verification. The letter verifying the caste certificate was received on 20.01.2004. The Respondent-MCD urged that the Old Pension Scheme was applicable only to the employees, who joined the service of the Respondent-MCD on or before 31.12.2003. All those who joined later would be covered by the New Contributory Pension Scheme. The learned Single Member allowed the claim of Dr. Alka Chandra for being covered under the Old Pension Scheme on the following reasoning:
8. The admitted facts of the case are that the applicant and others had applied for the vacancies that occurred on or before 31.12.2003, i.e., prior to the introduction of the New Pension Contributory Scheme, and that some of the candidates had been issued the offers of appointment and even allowed to join service on or before 31.12.2003 but the applicant along with some others were issued offer of appointment after 31.12.2003. While it is true that the New Pension Contributory Scheme had come into force from 1.1.2004 and was applicable to persons who joined in the Government service on or after 1.01.2004, there is considerable merit in the contention of the applicants counsel that the rules that should apply to the applicant should be those prevailing at the time of the notification for inviting applications for recruitment. The recruitment process also can be said to have concluded with the issue of UPSCs letter dated 31.07.2003 recommending appointment of the candidates, and the actual dates of joining would vary depending on completion of other routine formalities.
9. Para 3 and 8 of UPSCs letter dated 31.07.2003 recommending the selected candidates are extracted below:
3 The Commission recommended 10 candidates as per Annexure A to this letter arranged in the order of merit on an initial pay as indicated therein for appointment to the posts of Specialists Grade-II (Anaesthesia) in Municipal Corporation of Delhi. The recommended candidates have also been informed about their selection. 8.Dr. Parmita Chandrakanta Hazarika, Dr. Alka Chandra, Dr. Krishna Kumar, Dr. Mala Rani Gupta, Dr. Shri Krishan Chand, Dr. Aatul Kishore Kapoor and Dr. Dharam Singh Meena ( Sl. No. 01, 04, 06, 07, 08, 09 and 10 respectively) claimed to belonged to Scheduled Caste/Scheduled Tribe/OBC communities. Their claim to belong to these communities have been provisionally accepted on the basis of the original certificate submitted by them at the time of interview. Copies of these certificates can be seen in their respective applications dossiers. As instances have occurred where candidates obtained and produced Scheduled Caste/Scheduled Tribe/OBC certificates even though they did not really belong to these categories, the Government may, verify further the veracity of these documents before issuing offers of appointment to the candidates. In case of issuing offer of appointment provisionally pending verification of the veracity of these documents, the instructions as contained in the Department of Personnel & Training O.M. No. 36012/6/88-Estt (SCT) (SRD-III) and O.M. No. 36033/9/93-(SCT) dated 24.04.1990 and 10.05.1995 respectively should be followed. It is noticed that though the respondents had been asked to verify the certificates before issue of offer of appointment, there was also a mention about issue of offers provisionally. Further, the candidates case for verification of her caste status was sent to the concerned SDM vide respondent letter dated 22.08.2003 itself and the delay in obtaining the verification report can be attributed only to the executive authorities concerned and to the Respondents who failed to pursue the matter till 14.01.2004 when the SDM was reminded. Certainly the applicant cannot be made to suffer for delay not attributable to her. Viewed in this context, the issue of offer of appointments to others in the same batch, and some junior to her, while withholding the same in the case of the applicant would amount to discrimination, particularly when doing so resulted in her being declared ineligible for the pension benefits under the Old Pension Scheme. If such delay was normal, though this is evidently not so, because once the SDM was reminded, the certificate verification report was received within a week, the respondents would have issued the appointment orders of the applicant along with the others by mentioning that the appointment was provisional subject to the confirmation and verification of the relevant certificates in question.
10. In the light of the above, and particularly as persons of the same batch of recruitment and some junior to the applicant had been allowed to join before 31.12.2003 and were admitted to pension as per the Old Pension Scheme, not allowing the same benefit of this Scheme to the applicant is discriminatory. Accordingly, the OA is allowed and the impugned order dated 4.5.2009 is quashed and set aside. The respondents are directed to allow the applicant to join the Pension Scheme as per the rules prevailing at the time of her final selection and recommendation for appointment, i.e, July, 2003, and issue orders accordingly. Appropriate orders should be issued expeditiously and definitely within four weeks of receipt of this order. There shall be no order as to costs.
8. The seniority list of the Specialist Grade II in the Anaesthesia discipline has been placed at pages 35-36. The relevant part pertaining to the candidates in the Applicants batch has been reproduced below:
Sl.
No. Sty. No. Name of the Medical Officer Date of Birth Whether Depart-mental or direct recruit Whether Belonging to SC/ST, if not say neither UPSCS reference number with date Date of joining MCD as Specialist Gr. II 44 12 Dr.Pranita C. Hazarika W/o Dr. Piyoosh Malik 25.03.66 Direct OBC F.1/172/ 2002-R.1 dated 31.07.2003 26.12.2003
45. 23 Dr.Pradeep Govil S/o Sh.B.L.Govil 15.07.56 Direct Neither F.1/172/ 2002 R.1 dated 31.07.2003 25.02.2004
46. 14 Dr.Dharminder Singh S/o Sh.P.S. Khurana 20.04.69 Direct Neither F.1/172/ 2002 R-1 dated 31.07.2003 18.11.2003 47 15 Dr.Alka Chandra W/o Dr. Naresh Chandra 06.06.71 Direct Neither F.1/172/ 2002 R-1 dated 31.07.2003 12.4.2004 48 16 Dr. Vibhuti Gupta W/o Dr. Vivek Gupta 01.07.68 Direct Neither F.1/172/ 2002 R-1 dated 31.07.2003 05.12.2003 49 17 Dr.Mala Rani Gupta W/o Dr. Prem Ranjan 10.12.60 Direct OBC F.1/172/ 2002 R.1 dated 31.7.2003 31.08.2004 50 18 Dr.Sri Krishan Chand S/o Sh.
Sahukar Singh 26.03.71 Direct OBC F.1/172/ 2002 R.1 dated 08.03.2004
9. It is seen that the candidates at serial numbers 45,47,49 and 50 have joined after 31.12.2003. Dr. Alka Chandra is at serial number 47. Dr. Vibhuti Gupta at serial number 48, below Dr. Alka Chandra, joined on 5.12.2003. The Applicant herein, Dr. Sri Krishan Chand (OBC candidate like Dr. Alka Chandra) is at serial number 50 and there is no one below him. On the basis of the document, placed by the Applicant himself on record, there is no one below him in the merit list, who has joined on or before 31.12.2003. Be that at it may, in our considered opinion the Applicants pleas have no merit. Although the amended pension rules have not been placed on record, it is clear that the rules mandate that New Contributory Pension Scheme would apply to all those who joined on or after 1.01.2004. It is the date of joining, which is the criterion and rightly so. It is not quite right to argue that the candidates would be eligible for being covered under the Old Pension Scheme, as the process of selection had been completed on 31.07.2003. What was completed was only the process for which the U.P.S.C. was responsible. Thereafter, other formalities like medical examination, verification of character and antecedents etcetera have to be completed. It is only after completion of these formalities that the candidate would be allowed to join. When the rules or instructions do not provide for taking the date when the U.P.S.C. made its recommendation as the date determining the eligibility for inclusion in a particular pension scheme, we cannot go behind these rules and instructions and hold the date of recommendation to be the date from which such eligibility should be considered.
10. The Government has certainly the right to amend the rules, in administrative exigencies, at any time. These rules would apply to all those who join after the rules are amended. In Union of India V. S.S. Uppal and another, 1996 (1) SCSLJ Vol. 22 225, the Honourable Supreme Court held that the amended rules would apply if an officer of State Service was considered for promotion to IAS after the amendment of the rules irrespective of the fact that other officers, similarly placed as him and considered in the same selection committee, were given the benefit of unamended rules. The right of the Government to amend the rules at any time was upheld.
11. It is not the Applicants case that it was deliberately malafide action on the part of some official of the Respondent-MCD that his appointment was delayed. The delay is also not so extraordinary, which may give rise to suspicion of foul play.
12. We had also put the query to the learned counsel for the Applicant as to why he did not approach the appropriate Court/Tribunal earlier for redressal of his grievance. The Applicant, it seems, has been aware of the amended scheme, as seen from a reading of his representation to the Respondent, wherein it has been emphasized that he had approached the authorities of the Respondent so that he could join before 31.12.2003. The Applicant has also not shown as to how deductions were being made from his pay before July 2009, which pay slip has been placed on record as already adverted to. The amended pension scheme has not been placed on record and there is no mention of the date on which it was adopted by the Respondent-MCD. No clue to this is available in the pleadings. On the contrary, it appears that it was applicable from 1.01.2004. How did the Applicant not know then as to what scheme he was covered by. It is clear from the records that some of the candidates recommended by the UPSCS letter of 31.07.2003 i.e., the Applicants batch, have joined before 31.12.2003 and some after 31.12.2003. There is no mention of how many, who joined after 1.01.2004, were covered under which scheme. Dr. Alka Chandra was placed in the New Scheme as is seen from the perusal of facts in OA number 1607/2007 because she joined after 1.01.2004. The Applicants case is the same as Dr. Alka Chandras case (supra). Both of them joined after 1.01.2004 and were placed in the New Pension Scheme. It is not the Applicants case that some candidate(s), who joined after 1.01.2004, was/were covered by the Old Pension Scheme. The case for discrimination would arise only if some candidate who joined after 1.01.2004 had been covered under the Old Pension Scheme. No discrimination can be claimed merely on the ground that some candidates were able to join before 31.12.2003. This is merely fortuitous.
13. On above considerations, we are of the considered opinion that in the facts and circumstances of this case, the Applicants claim to be covered by the Old Pension Scheme cannot be entertained. We are of the considered opinion that the learned Single Members has not taken a correct view in Dr. Alka Chandras case (supra).
14. The OA is dismissed in limine.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman sk