Central Administrative Tribunal - Delhi
Hon Ble Shri Raj Vir Sharma vs (By Advocate Shri Sanjay Sharawat) on 4 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.4191 OF 2012 New Delhi, this the 4th day of August 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Sh.Vir Singh, S/o Sh.Kaley Ram, R/o L-1/61-A, DDA Flats, Kalkaji, New Delhi 110019 .. Applicant (By Advocate Shri Sanjay Sharawat) Vrs. 1 Government of NCT of Delhi, Through Chief Secretary, Naya Sachivalaya, I.P.Estate, New Delhi 110002 2 Director of Education, Directorate of Education, Old Secretariat, Delhi 110054 3. Government Boys Senior Secondary School, Through its Principal, DDA Flats, Phase II, Kalkaji, New Delhi 110019 Respondents (By Advocate Shri Vijaya Pandit) .. O R D E R
Raj Vir Sharma, Member(J) 1 In this Original Application, the applicant has prayed for the following relief:
(i) Quash and set aside impugned order/communication dated 05.11.2012(Annexure A-1) passed by the Respondent No.3 thereby declining the claim of the applicant for grant of pension, gratuity and other service benefits in lieu of services rendered by him; and Consequently direct the Respondents to pay to the applicant pension, gratuity and other service benefits as per his entitlement in law in lieu of services rendered by him along with all arrears in this rgard w.e.f. the year 1992 when he was relieved from services with uptodate interest @18% p.a. till date of payment; and
(iii) Grant such other and further reliefs as deemed fit and proper in the facts and circumstances of the case.
2. Brief facts of the case of the applicant are that he joined the service as a Trained Graduate Teacher (TGT for short) on 30.10.1972 under respondent nos. 1 and 2. He was promoted to the post of Post Graduate Teacher (History) (PGT for short) with effect from 20.12.1982. In the year 1992, he applied for a new assignment as Principal in Navodaya Vidyalaya Samiti (NVS for short) through proper channel. On his selection and appointment as Principal in NVS, when he was not relieved by the respondents to join the aforesaid post, he approached this Tribunal earlier, vide OA No.1567 of 1992. By order dated 1.7.1992 the Tribunal directed the respondents to relieve him subject to the outcome of the said O.A. Accordingly, he was relieved by the respondents on 13.7.1992. He joined as Principal in NVS on 14.7.1992 and served as such till 02.09.1996. On 02.09.1996, vide relieving order dated 02.09.1996, he was discharged from the service of NVS and was accordingly relieved.
2.1 It is stated by the applicant that he requested respondent no.2 to release pension and other retirement benefits by taking into account the period of service rendered by him. On being informed by respondent that only on his submitting proper resignation, his case for pension and retirement benefits will be processed. By his letter dated 01.10.2001 (Annexure A-5) the applicant tendered his resignation and requested respondent no.2 to release the pension and other retirement benefits. In response to the applicants letter dated 01.10.2001, respondent no.2, vide letter dated 24.9.2002 (Annexure A-6) asked the applicant to furnish certain documents. Thereafter, respondent no.2 informed the applicant that he has been deemed to have resigned from the post of PGT(History) with effect from 13.07.1992, vide office order dated 09.07.2003(Annexure A-7).
2.2 Respondent No.2 released a sum of Rs.58,810/- by way of cheque dated 19.01.2006 in favour of the applicant towards GPF. As pension, gratuity and other benefits were not released in his favour, the applicant, by his letter dated 30.3.2011(Annexure A-8) requested respondent no.2 to release the same. After a reminder dated 15.4.2011 (Annexure A-9) was sent by the applicant to respondent no.2 in the matter, respondent no.2, vide his letter dated 25.04.2011 (Annexure A-10) requested the Deputy Director, District South, to take appropriate action on the applicants representation dated 30.03.2011. Respondent no.3, by his letter dated 01.06.2011(Annexure A-11), asked the applicant to submit certain documents for processing his request for releasing pension, etc. Thereafter, there were correspondences made by and between different authorities of respondent no.2 vide Annexures A-12, A-13 and 14, after which a sum of Rs.4,608/- was paid to the applicant towards Leave Encashment by way of cheque dated 21.7.2011.
2.3 Despite all his efforts, when pension and other retirement benefits were not paid to him, the applicant, served a legal notice dated 27.07.2011 (Annexure A-15) on respondent no.2 and thereafter, he approached this Tribunal in OA No.4029 of 2011. The Tribunal, by order dated 14.10.2011 (Annexure A-17), dismissed the said O.A. as being barred by limitation. Being aggrieved by the Tribunals order dated 24.10.2011 passed in OA No.4029 of 2011, the applicant approached the Honble High Court of Delhi in Writ Petition ( C ) No.893 of 2012. The Honble High Court passed the following order on 30.11.2012 (Annexure A-18):
The learned counsel for the petitioner seeks permission to withdraw this writ petition which is directed against the order dated 14.11.2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No.4029/2011. However, he seeks liberty to challenge the order dated 05.11.2011 issued by the Principal, Govt.Boys Senior Secondary School, D.D.A.Flats, Phase II, Kalkaji, New Delhi, which was issued subsequent to the filing of the said O.A. The learned counsel for the petitioner states that since it was a subsequent event, this order dated 05.11.2011 was not the subject matter of challenge before the Tribunal.
He seeks liberty to challenge the said order by way of an independent proceeding. Consequently, we dismiss this writ petition as withdrawn with liberty granted to the petitioner to independently challenge the order dated 05.11.2011. 2.4 Accordingly, the applicant has filed the present Original Application seeking the reliefs quoted in paragraph 1 above. In support of his prayers, the applicant has mainly urged the following grounds:
(1) The impugned order being unreasoned and non-speaking one is liable to be quashed;
(2) When the respondents issued order dated 09.07.2003 (AnnexureA-7) stating that the applicant is deemed to have resigned from the service/post of PGT (History) with effect from 13.07.1992 and when GPF amount of Rs.58,810/- was disbursed to the applicant by cheque dated 19.01.2006 and leave encashment amount of Rs.4,608/- was paid to the applicant vide cheque dated 21.07.2011, the denial of pension and other retirement benefits for the services rendered by him during the period from 30.10.1972 to 13.07.1992 is arbitrary and discriminatory, more particularly when no reason whatsoever has been assigned therefor.
3. Resisting the claims of the applicant, the respondents have filed a counter in which they have raised a preliminary objection with regard to maintainability of the Original Application and have submitted that the Original Application is hit by delay and laches as the applicant is seeking benefits of service rendered with effect from 30.10.1972 to 13.7.1992. In support of their contention that the O.A. is barred by limitation, the respondents have relied on the decisions of the Honble Supreme Court in (i) Union of India v. M.K.Sarkar, (2010) 2 SCC 59; (ii) State of Punjab v. Gurdev Singh, (1991) 4 SCC 1; (iii) Union of India v. Ratan Chandra Samanta, JT 1993(3) SC 418; (iv) Harish Uppal v. Union of India, JT 1994(3) SC 126; State of Haryana and others v. Ajaya Walla, JT 1997(6) SC 592; and D.C.S.Negi v. Union of India and others SLP(CC 3709/2011), decided on 7.3.2011. It has also been submitted by the respondents that O.A.No.4029 of 2011 filed by the applicant for similar relief was dismissed by the Tribunal vide order dated 14.11.2011 (Annexure R-1).
3.1 In the counter the respondents have not disputed that by order dated 9.7.2003 (Annexure A-7) the resignation tendered by the applicant was accepted and the applicant was deemed to have resigned from the service/post of PGT (History) with effect from 13.07.1992.. It is admitted by the respondents that the applicant was paid GPF and Leave Encashment on 19.01.2006 and 21.07.2011 respectively. As regards the entitlement of the applicant for pension and other retirement benefits, the respondents have stated that the applicant is not entitled to pension and other retirement benefits since he resigned from service and under Rule 26 of the Central Civil Service (Pension) Rules, 1972 the resignation entailed forfeiture of his past service.
4. The applicant, in his rejoinder, has refuted the averments made by the respondents in their counter. With regard to the contention of the respondents tat the O.A. is liable to be dismissed on the ground of delay and laches, the applicant has submitted that the judgments relied upon by the respondents are wholly inapt and inapplicable to the facts of his case. Reiterating the averments made by him in the O.A., the applicant has submitted that cause of action for filing the present O.A. arose on 5.11.2011 when he was informed by the respondents, vide letter dated 5.11.2011 (Annexure A-1) that his case was rejected by the higher authorities as he was not entitled for any pension, gratuity and other benefits.
4.1 Referring to Rule 26 of the Central Civil Service (Pension) Rules, 1972 (hereinafter referred to CCS Pension Rules) and the Government of Indias decisions thereunder, the applicant has submitted that Rule 26(1) of the CCS Pension Rules is not applicable to his case as he had sought resignation for joining the post of Principal in NVS and he had been relieved by the respondents for the said reason.
5. The respondents have filed a further counter to the applicants rejoinder and the applicant has also filed a further rejoinder to the respondents further counter. In the said counter and rejoinder, no new averment has been made by either side, save and except stating about some discrepancy in the amounts paid by the respondents to the applicant towards GPF and Leave Encashment, which has no consequence on the issues raised and to be adjudicated in the O.A.
6. From the pleadings, the following issues arise for consideration by this Tribunal:
(1) Is the Original Application barred by limitation?
(2) Is Rule 26(1) or Rule 26(2) of the CCS Pension Rules applicable to the case of the applicant?
(3) Are the respondents justified in rejecting the applicants case for pension, gratuity and other retirement benefits?
(4) To what relief the applicant is entitled?
7. I have perused the pleadings and heard Shri Sanjay Sharawat, the learned counsel for the applicant, and Shri Vijaya Pandit, the learned counsel for the respondents.
Issue No.1:
8. In support of the contention of the respondents that the Original Application is liable to be rejected as being barred by limitation, the respondents in their counter and the learned counsel appearing for them during the course of hearing, have relied on the following decisions:
(i) Union of India v. M.K.Sarkar, (2010) 2 SCC 59;
(ii) State of Punjab v. Gurdev Singh, (1991) 4 SCC 1;
Union of India v. Ratan Chandra Samanta, JT 1993(3) SC 418;
Harish Uppal v. Union of India, JT 1994(3) SC 126;
State of Haryana and others v. Miss Ajaya Walla, JT 1997(6) SC 592; and D.C.S.Negi v. Union of India and others SLP(CC 3709/2011), decided on 7.3.2011.
8.1 In M.K.Sarkars case (supra), the respondent joined the railway service on 10.2.1947. He was a subscriber to the Contributory Provident Fund Scheme. The Railways introduced the pension scheme vide Railway Boards letter dated 16.11.1957. Under the said scheme, those who entered railway service on or after 16.11.1957, were automatically governed by the pension scheme. Those employees who were in service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957 were given an option to switch over to pension scheme instead of continuing under the Contributory Provident Fund Scheme. Those who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme whenever the pension scheme was liberalized or made more beneficial, vide Notifications dated 17.9.1966, 26.101962, 17.1.1964, 3.3.1966, 13.9.1966, 15.7.1972, and 23.7.1974. The validity period of the Eighth Option under the notification dated 23.7.1974, which was from 1.1.1973 to 22.1.1975, was extended from time to time up to 31.12.1978. Under the terms of the option, a retired railway employee who opted for the pension scheme had to refund the Governments contribution to the provident fund. The respondent though aware of the introduction of the pension scheme and the options given on eight occasions between the years 1957 to 1974, consciously did not opt for the pension scheme and continued with the Contributory Provident Fund Scheme. Ultimately the respondent while serving as Controller of Stores, took voluntary retirement with effect from 15.10.1976. As on the date of his retirement, the Eighth Option to shift to pension scheme, was still open for exercise. But the respondent did not opt for the pension scheme but received the contributory provident fund dues on his retirement. More than 22 years after his retirement, and after receiving his dues under the Provident Fund Scheme, the respondent made a representation dated 8.10.1998, requesting that he may be extended the benefits of the pension scheme. He stated that he was willing to refund the amount received under the Provident Fund Scheme (by way of adjustment against the amount of pension that would become payable to him on acceptance of his request for switching over to the pension scheme). The said request was not accepted. The respondent, therefore, approached the Central Administrative Tribunal in OA No.657 of 1999 seeking a direction to the Railway Administration to permit him to exercise an option to switch over to pension scheme. The Tribunal by order dated 11.2.2004 disposed of the application by directing the appellants to take a decision on the representation of the respondent by a reasoned order, making it clear that it did not examine the claim on merits. The Chairman, Railway Board, having rejected the belated request of the respondent, Original Application was filed before the Central Administrative Tribunal. The Tribunal allowed the O.A., and the appellants writ petition challenging the Tribunals order having been dismissed by the High Court, the appellants approached the Honble Supreme Court. The Honble Apex Court, allowing the appeal and setting aside the orders of the Tribunal and the High Court, held in paragraph 22 of the judgment as follows:
22. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of the option, cannot contend that he was not served a written notice of the availability of the option after 22 years. In such a case, even if Railway Administration was represented, it was not reasonable to expect the department to maintain the records of such intimation(s) of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option. 8.2 In Gurdev Singhs case (supra), CA Nos.1852 of 1989 and 4772 of 1989 were filed by the State of Punjab and others. The respondent in CA No.1852 of 1989 was appointed as an ad hoc Sub Inspector in the District Food and Supply Department of Punjab State. He absented himself from duty with effect from September 29,1975. On January 27,1977, his services were terminated. On April 18, 1984, he instituted the suit for declaration that the termination order was against the principles of natural justice, terms and conditions of employment, void and inoperative and he continues to be in service. The question was whether the suit was barred by limitation. The Honble High Court of Punjab & Haryana held that the suit for such relief was not governed by the Limitation Act and allowed the appeal. The said Civil Appeal was filed against the judgment of the Honble High Court. The Honble Supreme Court held that if an act is void or ultra vires, it is enough for the court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not quash so as to produce a new state of affairs. Therefore, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires, the court cannot give the declaration sought for. The view that if the dismissal, discharge or termination of services of an employee is illegal, unconstitutional or against the principles of natural justice, the employee can approach the court at any time seeking declaration that he remains in service, cannot be accepted.
8.3 In Ratan Chandra Sammantas case, the Honble Supreme Court held thus:
6. Two questions arise, one, if the petitioners are entitled as a matter of law for re-employment and other if they have lost their right, if any, due to delay. Right of casual labourer employed in projects to be re-employed in railways has become recognized both by the Railways and this Court. But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for the petitioners that they may be permitted to produce their identity cards etc., before the opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour a person who has some right and for sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment, if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed. We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 and 1969 and retrenched between 1975 to 1979. 8.4 In Miss Ajay Wallas case(supra), the Civil Appeal was filed by the State of Haryana and others against the judgment passed by the Honble High Court of Punjab directing the appellants to appoint the respondent forthwith on the post of Sub Divisional Clerk in any Department of the State of Haryana. The Honble Apex Court in paragraph 6 of the judgment held as follows:
6. The facts reveal that requisition was made for recruitment only four candidates. The service election Board had no power and jurisdiction to select as many as 28 candidates and to recommend their names to various Departments for appointment. In the circumstances, when the Superintending Engineer, Hathnikund Circle had not requisitioned appointment of 8 candidates including the respondent, he rightly not acceded to and returned the list to the Board stating that he could not make any appointment as the ad hoc Sub Divisional Clerks already working had obtained stay from the High Court against their termination. In these circumstances, the direction asking the Superintending Engineer to appoint the respondent, issued by the High Court is obviously illegal. Moreover, the selection was made in 1982 i.e. after an inordinate delay. Representation repeatedly given to various authorities do not furnish her fresh cause of action to file writ petition. The High Court is wholly unjustified to have entertained and allowed the writ application. 8.5 In Harish Uppals case (supra), the petitioner was commissioned in the Indian Army (Artillery Regiment) in June 1965. He was in the unit which was sent to Bangladesh in connection with Military operations there in December 1971. In respect of certain irregularities committed by the petitioner, a court-martial was held against him at which he was found guilty and he was awarded the punishment of (a) dismissal and (b) two years rigorous imprisonment. This punishment was imposed after giving the petitioner an opportunity of pre-confirmation hearing as provided by Section 164(1) of the Army Act, 1950. The final orders imposing the said punishment were passed on 14.8.1972 and communicated to the petitioner on 3.9.1972. While the petitioner was in prison, his advocate sent a post-confirmation petition under Section 164(2) of the Army Act to the Government of India. The petitioner said that he received the Government of Indias reply on the said representation only on 11.11.1983 (i.e. about 11 years later), whereas respondents case is that the order rejecting the said post-confirmation petition was duly communicated to his advocate on 18.9.1973. The petitioners elder brother had filed Writ Petition No.456 of 1972 for issuance of a writ of habeas corpus in the Honble Supreme Court seeking the release of the petitioner. The said writ petition was dismissed by the Honble Supreme Court on 27.11.1972. In 1983 the petitioner had approached the Honble Supreme Court by way of another writ petition being W.P.No.12590 of 1983 which was dismissed in limine directing the Government of India to communicate its orders upon the petitioners post-confirmation petition, if not already communicated. The petitioner said that it was only thereafter that he received the orders of the Government upon his post-confirmation petition. He then approached the Honble High Court in C.W.P. No.827 of 1984 challenging the rejection of his pre-confirmation petition. The Honble High Court dismissed the petitioners writ petition summarily on two grounds, viz., (1) that the petitioner had approached the Honble Supreme Court but his petition was dismissed by the Supreme Court on 27.11.1972, and (2) that his petition was highly belated. On the findings that the petitioner was duly communicated the rejection orders on his pre-confirmation petition in 1973 and that the petitioner was guilty of laches, the Honble Supreme Court dismissed the SLP and observed in paragraph 8 of the judgment as follows:
.It is a well settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. 8.6 In D.C.S.Negis case (supra), the petitioners case was considered by the DPC, which met on 2.6.2003, for promotion to the Senior Administrative Grade but he was not found suitable. The recommendations of the DPC were approved by ACC some time in December 2003. Thereafter some of the officers junior to the petitioner were promoted to Senior Administrative Grade. After almost two years of his supersession, the petitioner made representation dated 26.10.2005, which was followed by another representation dated 7.12.2005 for reconsideration of his case for promotion to the Senior Administrative Grade, but the same did not appear to have been accepted by the competent authority. His case was considered in the DPC held on 2.3.2006 for promotion against the vacancies of the year 2006 and on being found suitable, he was promoted vide order dated 10.5.2006. Soon after his promotion, the petitioner approached the Tribunal in OA No.1316 of 2006. The Tribunal, after going through the records produced by the respondents, recorded a finding that the ACC had not disapproved the recommendations of the DPC and held that the petitioners grievance in the matter of non-promotion was untenable because he was unfit. The writ petition filed by the petitioner was also dismissed by the High Court. The Honble Supreme Court dismissed the SLP. Before parting with the case, the Honble Supreme Court considered it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under section 19 of the Act in complete disregard of the mandate of Section 21 and observe as follows:
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant. 8.7 A careful perusal of the above decisions reveals that the Honble Supreme Court has laid down the law that delay itself deprives a person of his remedy available in law and that in the absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. It is also found therefrom that the facts and circumstances of the said cases before the Honble Apex Court were not akin to that of the case at hand. The point of recurring and/or continuing cause of action was not involved in any of the cases.
8.7.1 In D.C.S.Negis case (supra) the Honble Supreme Court observed that it is the duty of the Tribunal to first consider whether the application made to it is within limitation in terms of Section 21 of the Administrative Tribunals Act, 1985 even if an objection of limitation is not raised by the respondent.
9. The learned counsel for the applicant, on the other hand, submitted that the respondents themselves failed to take appropriate decision relating to payment of GPF, Leave Encashment, Pension and Gratuity, etc., within a reasonable period, after the applicant was relieved by them on 13.7.1992 to join the post of Principal in NVS and also failed to take such decision when they were requested by the applicant in 1996 after he was discharged from service of the NVS. The respondents slept over the matter for years together till the applicant was asked by them to tender resignation for the purpose of processing his retirement benefits . Though the applicant tendered his resignation on 1.10.2001, the respondents took more than one and half years to take a decision on 9.7.2003 mentioning the applicant deemed to have resigned from the service/post of P.G.T.(History) with effect from 14.7.1992. Thereafter they took about three years to pay the GPF amount to the applicant in 2006 and about five years to pay the leave encashment to the applicant in 2011. After OA No.4029 of 2011 was disposed of by the Tribunal, vide its order dated 24.10.2011, the respondents communicated the impugned order dated 5.11.2011 (Annexure A-1) to the applicant rejecting his case for pension, gratuity and other benefits, on the ground that the applicant is not entitled to the same. On the above facts and in the circumstances of the case, it was submitted by the learned counsel for the applicant that delay, if any, was attributable to the respondents. It was further submitted by the learned counsel that when the applicant was given an impression by the respondents from time to time that his case would be duly considered and when the applicant was asked from time to time by the respondents to furnish the required papers, the applicant did not approach the Tribunal in the matter till 2011. Only during pendency of the writ petition filed by him before the Honble High Court of Delhi, he was communicated the impugned order dated 5.11.2011 and accordingly, he sought withdrawal of the writ petition, which was allowed by the Honble High Court with liberty to the applicant to independently challenge the said order dated 5.11.2011. It was further submitted by the learned counsel that cause of action for the applicant to file the present Original Application arose on 5.11.2011 when the communication dated 5.11.2011 (Annexure A-1) was issued by the respondents to the applicant rejecting his claim for pension, gratuity and other retirement benefits and the Original Application having been filed on 11.12.2012 was within the period of limitation. It was further submitted by the learned counsel for the applicant that even if it is taken that there is any delay in claiming the pensionary benefits, yet as non-payment and/or denial of pension gives rise to a recurring cause of action, the Tribunal should take a liberal and sympathetic view and decide the applicants claim on merits. In support of his contentions, the learned counsel for the applicant cited the following decisions:
(i) K.K.Dhir v. Union of India and others, 135(2006) DLT 300 (DB);
Sualal Yadav v. The State of Rajasthan and others, (1976) 4 SCC 853;
Anand Swarup Singh v. State of Punjab, (1972) 4 SCC 744;
M.R.Gupta v. Union of India and others, (1995) 5 SCC 628;
Union of India and others v. Tarsem Singh, (2008) 8 SCC 648; and Ex.Sub.Maj. Balbir Singh and others v. Union of India and others, ILR (2005) II DELHI 797.
9.1 In K.K.Dhirs case (supra) it was held by the Honble Delhi High Court that once the Government reconsiders a case on merits instead of rejecting the representation on the grounds of delay, the plea of limitation does not arise. It was also observed by their Lordships that the right to claim pension gives a recurring cause of action.
9.2 In Sualal Yadavs case (supra), the Honble Supreme Court in paragraph 2 of the judgment held as follows:
2. A preliminary objection was taken by the State in the High Court that the application merited dismissal because of undue laches and delay on the part of the appellant. The High Court found that the review application was made to the Governor after a lapse of about two years which was unreasonable delay according to the High Court. That is the main reason why the High Court accepted the preliminary objection and dismissed the writ application. We are unable to hold that the High Courts approach in this matter was correct. Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application. We, therefore, allow the appeal, set aside the order of the High Court and remit the writ application for disposal in accordance with law. It is hoped the High Court will be able to dispose of the same expeditiously. There will be no order as to costs. 9.3 In Anand Swarup Singhs case (supra), the Honble Supreme Court held that the plaintiff could only recover the arrears of pension for three years in a suit for arrears of pension.
9.4 In M.R.Guptas case (supra), the Honble Supreme Court in paragraph 5 of the judgment held as follows:
5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellants grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellants claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellants claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches, etc., to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action. 9.5 In Tarsem Singhs case (supra), the Hon ble Supreme Court observed in paragraph 4 of the judgment observed thus:
4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A continuing wrong refers to a single wrongful act which causes a continuing injury. Recurring/successive wrongs are those which occur periodically, each wrong giving rise to a distinct and separate cause of action.. Their Lordships in paragraph 7 of the judgment also observed thus:
7. To summarize, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to be said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
In Tarsem Singhs case (supra),the respondent was declared invalid from army service on 13.11.1983. He, however, approached the High Court as late as in 1999 for grant of disability pension. His writ petition was allowed by the Single Judge, but grant of arrears was restricted to a period of three years and 2 months (total 38 months) prior to filing of writ petition. The Division Bench of the Honble High Court, however, allowed the respondent arrears from 13.11.1983 itself. The Honble Supreme Court in paragraph 8 of the judgment held as follows:
8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, which ever was lesser. It ought not to have granted interest on arrears in such circumstances. 9.6 In Ex.Sub.Maj. Balbir Singhs case (supra), the Honble High Court of Delhi, in paragraph 10 of the judgment, observed thus:
Ordinarily in matters relating to pension the writ court do not deny relief on account of delay merely if it is found that the claim made is otherwise just, legal and bona fide. In that event, a liberal and sympathetic view is to be taken. In two decisions, namely, in the decision of Shri Bhagwan (supra) and Bachan Kaur v. Union of India (W.P. 621/89) decided on April 13,1985, the Division Benches of this Court have taken a view that the writ petition claiming pension, if the claim is otherwise just and legal, may be entertained and allowed limiting the same to a period of three years before the date of filing of the writ petition.. 9.7 The propositions of law which emerge from a combined perusal of the above referred decisions, which have been cited by the learned counsel for the applicant, can be summarized as under:
(a) Once the Government considers a case on merits instead of rejecting the representation on the grounds of delay, the plea of limitation does not arise.
(b) The right to claim pension gives rise to a recurring cause of action.
(c) In a suit for arrears of pension, the plaintiff can only recover the arrears of pension for three years preceding the date of filing of the suit.
(d ) If the issue relates to payment of pension, the relief may be granted in spite of delay as it does not affect the rights of third parties.
(e) Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury
(f) In so far as consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply.
(g) A claim for pension, if it is otherwise just and legal, may be entertained.
10. On the facts and in the circumstances of the case and in view of the settled positions of law mentioned in the above paragraph, I find much force in the submissions made by the learned counsel for the applicant and hold that the Original Application deserves consideration on merits. Accordingly, issue no.1 is decided in favour of the applicant and against the respondents.
Issue Nos.2 & 3:
11. The impugned communication was dated 5.11.2011 (Annexure A-1) by which the applicant was informed that his case was rejected by the higher authorities as he was not entitled for any pension, gratuity and other benefits. In the counter reply the respondents have disclosed that the applicant resigned from service and that under Rule 26(1) of the C.C.S.Pension Rules the resignation entailed forfeiture of his past service and therefore, he was not entitled to pension and other retirement benefits. It is the case of the applicant that Rule 26(1) is not applicable to his case and that his case is covered by Rule 26(2) of the C.C.S.Pension Rules because he made the application, through proper channel, for selection and appointment to the post of Principal in NVS and he was relieved by the respondents with effect from 13.7.1992 to join the post of Principal in NVS.
11.1 Rule 26 of the CCS Pension Rules reads thus:
26. Forfeiture of service on resignation:
(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation ;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper ;
that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days ;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
(5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.
[(7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government.
11.2 The Government of Indias decisions with reference to Rule 26 of the CCS Pension Rules are also quoted hereunder:
(1) When resignation a technical formality and when it subsists. - A Government servant intending to apply for a post or posts outside his parent office/department under the Government of India should have his application forwarded through the competent authority under whom he was serving at the time of applying for the post. Such an authority should either forward the application or withhold it according as the exigencies of public service may indicate but it should not forward the application conditionally, for example, that in the event of the applicant coming out successful, he will the required to resign his post before taking up the new one. Once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course and the question of his resigning the post held by him in such circumstances should not arise. Accordingly the amended article is intended to cover the cases where even though the applications were forwarded by the competent authority, the applicant had been asked for one reason or the other to resign his post before taking up the new one. The above position holds good whether the Government servant held the post in permanent or temporary capacity, before resigning the post.
Situations may arise where the application of a Government servant was not forwarded and the Government servant resigned his appointment of his own volition with a view to his taking up the new post or where it was not possible to forward his application in the public interest but the Government servant had volunteered to resign his post or where the conditions of service in an office demand as a matter of policy that the Government servant should resign his post in the event of his taking up another post outside. In all such cases, it has been held that resignation of public service will subsist and entail forfeiture of past service.
It has been decided that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a `technical formality'. The pay in such cases may be fixed under FR 27.
[G.I., M.F., Letter No. 35 (15)-E. V/60, dated the 21st September, 1960, to the Secretary to the Government of Orissa, Finance Department, Bhubaneshwar and G.I., M.F., O.M. No. 3379-E. III (b)/65, dated the 17th June, 1965.] According to M.H.A., O.M. NO. 60/37/63-Ests. (A), dated the 14th July, 1967 (not printed), permanent/quasi-permanent Central Government servant appointed under another Central Government department has to resign from his parent department unless he reverts to that Department within a period of two years (three years in exceptional cases) of his appointment in the other department. The Government of India have been considering whether this resignation should entail forfeiture of past service for purpose of leave and pension of the Government servant concerned. It has been decided that such a resignation should be deemed to be resignation within the meaning of Article 418 (b) of CSRs [Rule 26 (2) of CCS(P) Rules,1972] for pension. As a consequence of this decision, continuity of service benefit should be allowed in the matter of leave also.
[Extract from M.H.A., O.M. No. 8/5/68-Ests. (C), dated the 19th December, 1969.] (2) Procedure to be followed in accepting resignation from service.- Instructions issued from time to time on resignation have now been consolidated for facility of reference and guidance of all the Ministries/Departments of the Government of India.
1. Format of resignation. - Resignation is an intimation in writing sent to the competent authority by the incumbent of a post, of his intention or proposal to resign the office/post either immediately or from a future specified date. A resignation has to be clear and unconditional.
2. Circumstances under which resignation should be accepted. - It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant form 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.
(ii) Where a Government servant, who is under suspension, submits a resignation, the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation. Normally, as Government servants are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation from a Government servant under suspension. Exceptions to this rule would be where the alleged offences do not involve moral turpitude or where the quantum of evidence against the accused Government servant is not strong enough to justify the assumption that if the departmental proceedings were continued, he would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.
In those cases where acceptance of resignation is considered necessary in the public interest, the resignation may be accepted with the prior approval of the Head of the Department in respect of Groups `C' and `D' posts and that of the Minister-in-charge in respect of holders of Groups `A', and `B' posts. In so far as officers of Groups 'A','B','C' and 'D' cadres of the Indian Audit and Accounts Department are concerned, the resignation may be accepted by the Heads of Departments as designated by the Comptroller and Auditor-General of India. Concurrence of the Central Vigilance Commission should be obtained before submission of the case to the Minister-in-charge/Comptroller and Auditor-General, if the Central Vigilance Commission had advised initiation of departmental action against the Government servant concerned or such action has been initiated on the advice of the Central Vigilance Commission.
3. A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the government servants before he is actually relieved of his duties, the normal principal should be to allow the request of the government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned.
4. Rules governing temporary Government servants. - Since a temporary Government servant can sever his connection from Government service by giving a notice of termination of service under Rule 5 (1) of the Central Civil Services (TS) Rules, 1965, the instructions contained in this Office Memorandum relating to acceptance of resignation will not be applicable in cases where a notice of termination of service has been given by a temporary Government servant. If, however, a temporary Government servant submits a letter of resignation in which he does not refer to Rule 5 (1) of the CCS (TS) Rules, 1965, or does not even mention that it may be treated as a notice of termination of service, he can relinquish the charge of the post held by him only after the resignation is duly accepted by the appointing authority and he is relieved of his duties and not after the expiry of the notice period laid down in the Temporary Service Rules.
5. Withdrawal of resignation - statutory rule regulating cases of withdrawal of resignation from Government service. - The procedure for withdrawal of resignation after it has become effective and the Government servant had relinquished the charge of his earlier post, are governed by the statutory provisions in sub-rules (4) to (6) of Rule 26 of the CCS (Pension) Rules, 1972, which corresponds to Article 418 (b) of the Civil Service Regulations.
6. Since the CCS (Pension) Rules, 1972, are applicable only to holders of permanent posts, the above provisions would apply only in the case of a permanent Government servant who had resigned his post. The cases of withdrawal of resignation of permanent Government servants which involve relaxation of any of the provisions of the above rules will need the concurrence of the Ministry of Personnel, Public Grievances and Pensions, as per Rule 88 of the CCS (Pension) Rules, 1972.
7. Release of Government servants for appointment in Central Public Enterprises. - A Government servant who has been selected for a post in a Central Public Enterprise/Central Autonomous Body may be released only after obtaining and accepting his resignation from the Government service. Resignation from Government service with a view to secure employment in a Central Public Enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization.
8. When resignation is a 'technical formality'. - In cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a `technical formality'.
[G.I., Dept. of Per. & Trg., O.M. NO. 28034/25/87-Estt. (A), dated the 11th February, 1988 and O.M. 28034/4/94 -Estt.A dated 31-5-1994.] (3) Procedure to be followed when benefit of past service is allowed. -
Order(i)No.F.3(6)-E.V(A)/71Government of India, Ministry of Finance (Department of Expenditure) New Delhi , the 4th December, 1971.
OFFICE MEMORANDUM Subject:- Benefit of past service under Art.418 (b) of CSRs [Now Rule 26(2) of Central Civil Services (Pension) Rules, 1972]- procedure to be followed.
Under Article 418 (b) of CSRs [now Rule 26 (2) of CCS (P) Rules, 1972] resignation of an appointment to take up, with proper permission, another appointment, whether permanent or temporary, service in which counts in full or in part, is not resignation from public service. A question has been raised whether in such cases a separate sanction should be issued indicating that resignation has been accepted under the above provisions, in order to enable the Audit/Administrative Officer to regulate the consequential benefits in the matter of pay fixation, carry forward of leave, pension etc. The matter has been considered in consultation with the Comptroller and Auditor General and it has been decided that in cases of the above type the order accepting the resignation should clearly indicate that the employee is resigning to join another appointment with proper permission and that the benefits under CSR 418 (b) [Now Rule 26(2) of Central Civil Services (Pension) Rules, 1972] will be admissible to him. The contents of the above order should also be noted in the service books of the individuals concerned under proper attestation. The issue of any separate sanction has not been considered necessary.
Sd/-
(S.S.L. MALHOTRA) UNDER SECRETARY TO THE GOVERNMENT OF INDIA 11.3 A combined reading of Rule 26 of the CCS Pension Rules and the decisions taken by the Government of India from time to time, as quoted above, makes it clear that a resignation shall not entail forfeiture of past service if it has been submitted by a Government servant to take up, with prior permission, another appointment under the Government where service qualifies. Such resignation should be deemed to be resignation within the meaning of Rule 26(2) of the CCS Pension Rules for pension. A Government servant who has been selected for a post in a Central Autonomous Body may be released only after obtaining and accepting his resignation from the Government service. Resignation from Government service with a view to secure employment in Central Autonomous Body with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such case, the Government servant shall be deemed to have retired from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization.
11.4 Admittedly, the applicant had made the application through proper channel for selection and appointment to the post of Principal in N.V.S. He was selected and appointed to the post of Principal in N.V.S. When he was not relieved by the Respondents to join the said post, he had earlier filed the Original Application. On the direction of this Tribunal, he was relieved by the Respondents on 13.7.1992 and joined as Principal in N.V.S. on 14.7.1992. After he was discharged from N.V.S., he moved the Respondents to release his retirement benefits. The Respondents kept the matter pending and only in 2001 asked the applicant to tender resignation. The applicant tendered his resignation on 1.10.2001 and the Respondents issued office order dated 9.7.2003 stating that the applicant was deemed to have resigned from service with effect from 13.7.1992. In the above view of the matter, Rule 26(2) of the CCS Pension Rules is applicable to the case of the applicant, and the Respondents are not correct in holding that the applicants case is covered under Rule 26(1) of the CCS Pension Rules. Therefore, the respondents are not justified in rejecting the applicants claim for pension, gratuity and other retirement benefits. Issue Nos. (2) and (3) are accordingly answered.
Issue No.(4):
12. Having decided Issue Nos. (1), (2) and (3) as above, I quash and set aside the impugned order/communication dated 05.11.2012 (Annexure A-1) and direct the Respondents to consider the entitlement of the applicant for pension and other retirement benefits for the services rendered by him from 30.10.1972 to 13.7.1992 by treating his case to have been covered under Rule 26(2) of the CCS Pension Rules. The Respondents shall take appropriate decision by passing a reasoned and speaking order in accordance with Rule 26(2) of the CCS Pension Rules and the decisions of the Government of India issued from time to time and communicate the same to the applicant within a period of three months from the date of receipt of copy of this order.
13. In the result, the Original Application is allowed to the extent indicated above. No order as to costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN