Central Administrative Tribunal - Delhi
Pramod Kumar Pandey vs Union Of India Through The on 14 August, 2008
Central Administrative Tribunal Principal Bench OA No.356/2008 New Delhi this the 14th day of August, 2008. Honble Mr. Shanker Raju, Member (J) Pramod Kumar Pandey, S/o Shri T.N. Pandey, R/o G-51, Sector-9, New Vijay Nagar, Ghaziabad (UP). -Applicant (By Advocate Shri Yogesh Sharma) -Versus- 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Chief Administrative Officer/C/P&P, Northern Railway, Construction Office, Kashmere Gate, Delhi. 3. The Secretary, Railway Board, Rail Bhawan, New Delhi. -Respondents (By Advocate Shri R.L. Dhawan) O R D E R
Applicant, by virtue of this OA, has impugned respondents order dated 27.6.2007, whereby his erstwhile service in Railways has not been counted for grant of pro rata pension.
2. The facts are not disputed. Applicant while posted in the Construction Organization in 2004 though not fulfilled the qualifications for the post of Manager (Civil Design) in RITES Ltd. yet applied without proper channel. However, on the qualification when he was asked to appear in interview on 6.9.2004 a representation before that made, seeking NOC, was turned down by the respondents on 10.9.2004 on account of shortage of technical staff. Applicant on selection as Manager (Civil Design) in RITES Ltd. made a representation to give him permission to leave the Railways, but ultimately tendered his resignation on 2.11.2004 on the ground that he has taken up employment, which was accepted on 1.12.2004. Grant of pro rata pension for the service rendered in Railways when rejected, gives rise to the present OA.
3. Learned counsel of applicant states that as per the CAG Circular dated 20.1.2004 the only condition for pro rata pension for a government servant to be absorbed in autonomous bodies is putting in 10 years service and holding of substantive post in Government department, according to which if he fulfills, there cannot be denial of pro rata pension. However, reliance is placed on Rule 41 of the Railway Services Pension Rules, 1993, wherein Rule 41 (2) provides that resignation shall not lead to forfeiture of past service, if it has been submitted to take up with proper permission another appointment. Accordingly, learned counsel states that once the resignation has been accepted to take up another employment, his past service cannot be forfeited.
4. On the ground of rejection of his request for NOC, learned counsel states that one Shri S.S. Naveed, who also sought similar permission, was allowed to proceed to IRCON and for him shortage of staff was not an impediment, which amounts to discrimination, violative of Article 14 of the Constitution of India.
5. Learned counsel would further contend that the decision of the High Court of Punjab & Haryana in Hans Raj v. State of Punjab, 2004 (2) ATJ 31 provides that merely because one has not applied for absorption through proper channel the qualifying service for pension would be reckoned if resignation is tendered with an intention to join Public Undertaking. A similar reliance has been placed on a decision of the Principal Bench in Sushil Kumar v. CAG, 1996 (2) ATJ 490, wherein the same proposition has been held. Also placed reliance is a decision of the coordinate Bench in V.K. Puri v. Union of India, OA No.851/2007, decided on 22.1.2008.
6. Learned counsel would also contend that as per Indian Railway Establishment Code (IREC) instructions issued from time to time shall mutatis mutandis apply to the Railways.
7. On the other hand, learned counsel of respondents vehemently opposed the contentions and while relying upon paragraph 1401 of IREM Volume-I and OM dated 31.1.1986, stated that in administrative exigencies applicants promotion for NOC, when rejected, is failure to apply for appointment outside Railways through proper channel, which entails forfeiture of his past service.
8. Learned counsel would also state that there is no automatic following of the Government of Indias instructions and it has to be specifically adopted by the Railways.
9. The decisions cited by the learned counsel of applicant have been observed to be distinguishable. Learned counsel states that in the matter of grant of NOC no discrimination has been meted out to the applicant, as another incumbent is of different cadre. While relying upon the decision of the Apex Court in A.K. Bhatnagar v. Union of India, 1990 SCR Supp. (2) 638 and Union of India v. R.K. Sehgal, 2007 (3) SLJ SC 129, it is stated that when rule covers the matter and its vires is not challenged, the same would hold the field. It is stated that for want of Railway Board being impleaded as a party, rules have not been challenged, which have force of law, as per the decision of the Apex Court in P.R. Subramaniam v. Chairman, Railway Board, AIR 1978 SC 284.
10. On careful consideration of the rival contentions of the parties and on perusal of the records, rules are clear. In order to be granted on resignation benefit of past service as per Rule 41 of the Pension Rules, resignation if tendered with a view to take up with proper permission another appointment shall qualify the service as qualifying for grant of pension if one joins either on permanent absorption or direct recruitment in Government of Indias Undertaking or Corporation in the instant case the applicant has admittedly not sought prior permission or had also not applied through proper channel for the post of Manager (Civil Design) in RITES, his subsequent conduct of seeking permission before interview when refused NOC, it cannot be said that applicant has applied for the post through proper channel. However, when applicant tendered his resignation he has clearly mentioned that he is resigning from the post to join RITES Ltd. a letter written to the General Manager (P) by the CEO on 3.11.2004 has clearly mentioned that applicant had applied for the post directly in RITES Ltd. and has moved technical resignation to join RITES Ltd. Accordingly, the resignation was accepted on the basis of the Note put up by CEO on 3.11.2004. However, the aforesaid order does not show that the resignation being technical, would not entail forfeiture of past service, as per Rule 41 (2). The contention put-forth by the applicant that for pro rata pension to the government servants on joining public sector undertakings as per CAG circular dated 20.1.2004 the conditions are only 10 years of qualifying service and holding of a permanent post but this 10 years of qualifying service would have to be viewed in the context of valid qualifying service in case appointment to public undertaking is sought without proper channel and when NOC is rejected, there has to be forfeiture of past service.
11. Another aspect of the matter, which is to be looked into is that whereas in the same department, i.e., construction one Naveed working as Junior Engineer (Works) whereas the applicant, working as Sectional Engineer when Mr. Naveed had tendered his resignation the NOC was issued to him and in the same grade whereas for the applicant shortage of technical staff was an impediment for refusing NOC. The applicant is challenging the aforesaid action of the respondents. It is trite that when as a model employer Railway should not make invidious discrimination when persons are identically situated, granting of NOC to Naveed and refusing in the case of applicant is certainly violative of Articles 14 and 16 of the Constitution of India.
12. Rule 106 of the Pension Rules in case of doubt in interpretation of the rules, Department of Pension and Pensioners Welfare is to be consulted. Though CAG circular would have no direct applicability in the present case, but as I find that applicant though ineligible, as per his qualification for the post notified by the RITES, yet when applied had sought for NOC before the process was over at the time of interview, which was delayed and by the time selection process was over permission was refused. The service rendered by the applicant with the Railways was terminated on the side of the applicant with a valid permission to take up employment. The only impediment of applying for direct recruitment through proper channel may not be there but the valid requirement of resigning the service on acceptance thereof, taking cognizance of joining RITES by the competent authority, undue hardship has certainly been caused to the applicant and as per Rule 107 of the Railway Pension Rules, in such an event in consultation with DoP&T and Department of Pension and Pensioners Welfare, one has to be redeemed from hardship.
13. In the result, for the foregoing reasons, this OA stands disposed of with a direction to respondents to refer the claim of applicant, on undue hardship, to the Railway Board for dispensing with the requirements of Rule 41 (2) and thereafter to count, on approval, the erstwhile service of applicant for pro rata pension. In such an event, he shall be entitled to all consequences in law. The respondents shall carry out this exercise within a period of three months from the date of receipt of a copy of this order. No costs.
(Shanker Raju) Member (A) San.