Central Administrative Tribunal - Delhi
Rajvinder Kaur vs Kendriya Vidyalaya Sanghthan on 10 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1100 of 2016
Orders reserved on : 05.09.2018
Orders pronounced on : 10.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Smt. Rajvinder Kaur,
W/o Shri Vikash Nagi,
Aged about 42 years,
Presently posted as PGT (Commerce) SKV, Hastsal,
New Delhi-43.
....Applicant
(By Advocate : Shri Ranjit Sharma)
VERSUS
1. Kendriya Vidyalaya Sangathan,
Through the Commissioner,
18, Institutional Area,
Saheed Jeet Singh Marg,
New Delhi-110016.
2. Directorate of Education,
Government of N.C.T. of Delhi,
Old Secretariat,
1. Sham Nath Marg, Delhi-54.
.....Respondents
(By Advocates : Shri S. Rajappa for R-1 and Ms. Sangita Rai with
Shri Pradeep Singh Tomar for R-2)
ORDER
By this OA, the applicant is seeking the following reliefs:-
"i. hold that the Applicant is entitled to Old Pension Scheme on the basis of the offer of appointment dt. 19.8.2003 and in accordance with her merit position in the selection panel in KVS as PGT commerce, accordingly, direct the respondents to admit her to the Old Pension Scheme.
ii. pass such other order/s as may be deemed fit and proper."2
2. Brief facts of the case are that the respondent KVS offered the applicant appointment to the post of PGT (Commerce) vide Memorandum dated 19.8.2003 (Annexure A3) but her appointment was kept in abeyance as she was pregnant of 12 weeks standing then. The applicant submitted letter dated 27.8.2003 (Annexure A4) expressing her willingness to join duty. However, she was offered appointment vide letter dated 26.2.2004 after termination of her pregnancy.
2.1 In 2006, the applicant took permission of the KVS to participate in selection process under the Directorate of Education, Govt. of NCT of Delhi. She was selected and on being selected, the applicant submitted her technical resignation, which was accepted vide office order dated 27.11.2007 (Annexure A6). Now she is presently working as PGT, Commerce under the Directorate of Education, Govt. of NCT of Delhi.
2.2 The applicant averred that it is an established law that the seniority of a selected candidate depends upon his/her merit position in the selection panel. Even as per office memorandum of 1976, a pregnant woman candidate whose appointment is deferred due to pregnancy has to be given seniority. Since seniority is retained despite the deferment of appointment, the applicant would be entitled to the benefits of old Pension Scheme. In support of her claim, the applicant placed reliance on decision of this Tribunal dated 16.10.2014 in OA No.3954/2013. 2.3 The applicant submitted her representation before the DOP&T dated 16.1.2014, KVS on 26.6.2014 and even gave legal 3 notice dated 12.10.2015 but the respondents have not given any reply to the same.
2.4 Feeling aggrieved by the aforesaid inaction on the part of the respondents, the applicant has filed this OA for redressal of her grievances.
3. Pursuant to notice issued to the respondents, both the respondents have filed their counter affidavit separately.
4. In the counter affidavit filed by respondent no.1 - Kendriya Vidyalaya Sangathan, wherein it is stated that applicant was offered appointment to the post of PGT (Commerce) from the Direct Recruitment Select Panel 2003 vide Memorandum dated 19.08.2003 with initial posting at KV Masjid Moth. But her appointment was kept in abeyance as she was pregnant. Following para 2 of the offer of appointment which relies upon the provisions of Govt. of India Rules governing employment of women candidates in a state of pregnancy the applicant was given a fresh offer of appointment vide Memorandum dated 25.2.2004 with her posting modified to KV SL Meerut, post her pregnancy. Thereafter she had submitted her technical resignation which was accepted vide order dated 26.11.2007. However, in the present OA, she has come up with the issue for fixing her seniority prior to her joining in KVS, i.e., in 2003 to get the benefit of pension instead of New Pension Scheme which come into force w.e.f. 1.1.2004.
4.1 Respondent No.1 further stated that seniority of a selected candidate depends upon his/her the very date of his/her joining. 4 The applicant became employee of the respondents in 2004. As such she was eligible or all benefits from the date of her joining the respondent's organization. The claim of the applicant for the seniority from the year 2003 is not justified as she was not the employee of KVS.
4.2 It is further stated that new Pension Scheme came into force with effect from 1.1.2004. The applicant joined in KVS only in the year 2004 although she was selected from Direct Recruitment panel of 2003 and offer of appointment was issued on 19.8.2003. However, she could join duty only in February 2004 as per the provisions contained in OM No.14034/5/75/Estt(D) dated 19.7.1976 and by that time, the Govt. of India had implemented NPS with effect from 1.1.2004 and the applicant for the first time entered in service in February 2004. Though the applicant was from the direct Recruitment Panel 2003, but she could not join duty in view of existing rules when she was a pregnant woman which delayed her joining till termination of her pregnancy. The new Pension Scheme came to be implemented in the year 2004 and her plea to fix her seniority prior to joining duty in the year 2003 has, therefore, no basis at all.
5. Respondent No.2 - Directorate of Education, Govt. of NCT of Delhi has also filed counter affidavit in which they raised preliminary objection that the present OA is highly time barred and not within the scope of Section 21 of the Administrative Tribunals Act, 1985 as the OA is not maintainable in view of law of the 5 Hon'ble Apex Court in the case of D.C.S. Negi vs. UOI, SLP (C) No.3709/2011.
5.1 It is further stated that in the year 2006, the applicant took permission from the KVS to participate in the selection process under the Directorate of Education and she got selected, technical resignation, which was accepted on 26.11.2007. She is now working as PGT (Commerce) under respondent no.1 at GSKV, Hastsal, New Delhi. Now the applicant has made prayer before this Tribunal for old Pension Scheme at par with her batch mates who joined their service in KVS in 2003.
5.2 It is further stated that the instant OA is not covered under Old Pension Scheme as she was offered for appointment after 1.1.2004 and the New Pension Scheme was also introduced w.e.f. 1.1.2004. She was offered appointment on 26.2.2004 after termination of her pregnancy.
6. During the course of hearing, Shri Ranjit Sharma, learned counsel for the applicant submitted that even though the appointment of the applicant was deferred, her seniority had to be retained as per rules in accordance with her merit position in the selection panel. Once seniority is retained, there is no reason why she should not be entitled to the old Pension Scheme. 6.1 Counsel further submitted that this Tribunal in a large number of cases had directed for grant of notional seniority and entitlement to old Pension Scheme to similarly situated candidates, whose appointment was delayed. In the case of Jai Bhagwan 6 Yadav and others vs. DSSSB and others (OA No.3954/2013 decided on 16.10.2014) similar issue as raised in the instant OA has been adjudicated and this Tribunal held as follows:-
"6. While examining the matter on the contentions raised by both the parties, it is noticed that when one of the contentions taken by the respondents in the said OA No.1795/2011 was that the applicants therein were appointed only in the year 2006 they are not entitled for any increments from the year 2003, that is the year in which the general category candidates belonging to their batch have been appointed, and therefore, they cannot claim seniority in the cadre of Assistant Teacher (Primary) when they were not even born in that cadre, this Tribunal dealt with all such contentions and finally passed the following order:
"9. In the above facts and circumstances of the case, we allow this OA with the direction to the respondents to grant notional seniority to the applicant as per their respective positions in the merit list prepared by the DSSSB in the year 2002. They shall also be given appointments on notional basis from the dates the first general category official has joined duty. Consequently, they will be entitled for notional increments and fixation of pay and other benefits like GPF, Pension, etc. as admissible to their batch mates belonging to the unreserved category. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. There shall be no order as to costs."
7. Recently, based on the aforesaid Judgement, we have also decided the OA No.924/2013 and batch, the applicants therein also, in pursuance of an Advertisement issued in the year 2002, for selection to the posts of Assistant Teacher in the Municipal Corporation of Delhi (MCD), applied and participated in the selection process. The respondents declared the results of most of the candidates in December, 2002 and on issuing of offer of appointment letters during June, 2003, those candidates were allowed to join duty. However, the respondents have not declared the results of the applicants and certain others on the ground that they do not belong to the reserved communities of Delhi and as such they are not entitled to reservation in Delhi and accordingly withheld the results of the applicants and others, therein, for parity of reasons, the said OA and batch, was allowed as under:
"10. In the circumstances, and in view of the fact that the applicants are similarly situated like the 7 applicants in OA No.1795/2011 and OA No.229/2013, the OA No.924/2013 is allowed. The respondents are directed to grant notional seniority to the applicants as per their respective positions in the merit list prepared by the DSSSB in the year 2002. They shall also be given appointments on notional basis from the date the first General Category candidate has joined duty. Consequently, they will be entitled for notional increments and fixation of pay and other benefits like GPF, Pension, etc. as admissible to their batch mates, belonging to the Unreserved category. However, they are not entitled for any arrears of pay. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. No order as to costs.
11. In view of the aforesaid orders passed in OA No.924/2013, for parity of reasons, the respective M.As filed for joining together and the O.A.No.928/2013, O.A.No.930/2013 and O.A.No.938/2013 are also accordingly allowed in terms of the directions issued to the respondents. No costs."
8. In the circumstances and for parity of reasons, the OA is allowed. The respondents are directed to grant notional seniority, if not already given, to the applicants as per their respective positions in the merit lists prepared by the DSSSB in the relevant year. They shall also be given fixation of pay on notional basis from the date the first General Category candidate has joined duty. Consequently, she will be entitled for notional increments and other benefits like GPF, Pension, etc. as admissible to their batch mates, belonging to the Unreserved category. However, the applicants are not entitled for any arrears of pay. The respondents shall pass appropriate orders in this regard within two months from the date of receipt of a copy of this order. No order as to costs." 6.2 Counsel for the applicant further placed reliance on the judgment of the Hon'ble Delhi High Court in the case of V. Ramana Murthy and others vs. Union of India and others (WP (C) No.6525/2016 decided on 11.9.2017 in which the petitioners who had joined as Constables on or after 1.1.2004 sought direction to the respondents therein to grant them benefit of old Pension Scheme instead of new Pension Scheme and the Hon'ble High 8 Court after analyzing plethora of cases on the issue held that "However, as a matter of abundant caution, we would observe and clarify that in case any of the selected candidates belonging to the same selection batch have been granted benefit of the Old Pension Scheme, which the petitioners have been denied, the petitioners would be entitled to raise the said claim before the authorities and, if denied the said benefit, can approach the appropriate forum for relief. The aforesaid observations would not confer any right on the petitioners who are not being discriminated, in the sense that they have been denied the benefit of the Old Pension Scheme, whereas others appointed and selected through the same selection process, i.e. pursuant to the same advertisement and recruitment rally, have been covered under the old pension scheme." 6.3 Counsel for applicant further placed reliance on judgment of Hon'ble Delhi High Court in the case of Inspector Rajendra Singh and others vs. Union of India and others (WP (C) No.2810/2016 decided on 27.3.2017) wherein appointment letters to the petitioners were issued in 2005, however, they had applied pursuant to the same advertisement as Parmanand and 24 others who filed a writ petition being WP(C) No.3834/2013 and the said writ petition was disposed of by a judgment and order dated 12.05.2015 of a Division Bench of the High Court by placing reliance on an earlier judgment of the High Court dated 26.05.2011 in WP(C) No. 5400/2010 (Avinash Singh Vs. Union of India and Others) and in WP(C) No. 327/2012 (Navin Kumar Jha Vs. Union of India and Others), and directed that the 9 petitioners, who had joined service after 01.01.2004 be given the benefit of the Old Pension Scheme, but they were denied the benefit of Old Pension Scheme and the Hon'ble High Court held as follows:-
"37. In H.D Vora v. State of Maharashtra & Ors. reported in (1984) 2 SCC 337, the Supreme Court condoned delay of 30 years in approaching the court where it found violation of substantive legal rights of the applicant in that case.
38. In this case, the petitioners have not retired from service.
After persons similarly circumstanced, if not identically circumstanced, as the petitioners were, given the benefit of the Old Pension Scheme, may be, pursuant to orders of this Court, the petitioners approached this Court for relief. Rejection of the writ petition only on the ground of delay, would perpetrate discrimination between persons similarly circumstanced.
39. It is well settled that relief under Article 226 of the Constitution of India is discretionary. When there is acquiescence and laches and delay in approaching this Court, discretionary relief might be declined. However, delay is no bar to entertaining a writ petition. If entertaining a delayed writ petition entails the consequence of unsettling things already settled, relief may be declined. However, flagrant discrimination cannot be allowed to continue, only because of delay. Illegality must be redressed. In this case grant of relief would not result in unsettling things already settled. We are not inclined to reject the writ petition on the ground of delay.
40. The writ petition is allowed. The respondent shall treat the petitioners as members of the Old Pension Scheme under the Central Civil Services (Pension) Rules 1972."
7. Counsel for the respondent no.1 Shri S.Rajappa, very vehemently submitted that date of joining to a particular post is the determining factor of placement in the seniority in the case of direct recruitment and as such the claim of the applicant for the seniority from the year 2003 is not justified as she was not the employee of KVS as she joined in KVS only in 2004 although she was selected from Direct Recruitment panel of 2003 and offer of 10 appointment was issued on 19.8.2003. However, she could join duty only in February 2004 as per the provisions contained in OM No.14034/5/75/Estt(D) dated 19.7.1976 and by that time, the Govt. of India had implemented new Pension Scheme with effect from 1.1.2004 and the applicant for the first time entered in service in February 2004.
8. Counsel for Directorate of Education Ms. Sangita Rai also submitted that this OA is hopelessly barred by time as in the year 2006, the applicant took permission from the KVS to participate in the selection process under the Directorate of Education and she got selected and her technical resignation was accepted on 26.11.2007. She is now working as PGT (Commerce) under respondent no.1 at GSKV, Hastsal, New Delhi. Now the applicant has made prayer before this Tribunal for old Pension Scheme at par with her batch mates who joined their service in KVS in 2003.
9. Heard learned counsel for the parties and perused the material placed on record.
10. It is an admitted fact that applicant was issued an offer of appointment on the post of PGT, (Commerce) vide Memorandum dated 19.8.2003 (Annexure A3) but her appointment was kept in abeyance as she was pregnant of 12 weeks standing then. The applicant submitted letter dated 27.8.2003 (Annexure A4) expressing her willingness to join duty. However, she was offered appointment vide letter dated 26.2.2004 after termination of her pregnancy in the garb of OM No.14034/5/75/Estt(D) dated 19.7.1976, vide which it has been decided that a woman candidate 11 who as a result of tests is found to be pregnant of twelve weeks standing or over shall be declared temporarily unfit and her appointment held in abeyance until the confinement is over. She should be re-examined for a fitness certificate after the date of confinement subject to the production of medical certificate of fitness from a registered medical practitioner. The vacancy against which the woman candidate was selected should be kept reserved for her. She should be re-examined for medical fitness six weeks after the date of confinement. If she is found fit she may be appointed to the post kept reserved for her and allowed the benefit of seniority in accordance with para 4 of Annexure to M.H.A. O.M. No. 9/11/55/RPS, dated 22nd December, 1959.
11. However, the said OM of 1976 was later on examined and vide subsequent OM No.14034/4/84-Estt. (D), dated 13th February 1985, it has been provided that it has now been decided in consultation with the Ministry of Health and Family Welfare, etc., that it shall no longer be necessary to declare a woman candidate as "Temporarily unfit", if she is found to be pregnant during medical examination before appointment against posts which do not prescribe any elaborate training, i.e. they can be appointed straightway on the job. However, where pregnant women are to be appointed against posts carrying hazardous nature of duties, e.g. in Police Organisations, etc. and they have to complete a period of training as a condition of service, the existing instructions laid down in OM, dated the 19th July, 1976, below will continue to apply.
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12. In view of the above position, reliance placed by the respondent no.1 on the OM of 1976 while denying the applicant to join the post during the period of pregnancy despite the fact that she has given her willingness vide her letter dated 27.8.2003 to join the post of PGT (Commerce) is based on wrong connotation as the post of PGT (Commerce) does not carry hazardous nature of duties, e.g. in Police Organisations, etc. nor she has to complete a period of training as a condition of service.
13. So far as contention of learned counsel for the respondent no.2 that the present OA is hopelessly barred by time is concerned, in the peculiar facts and circumstances of the present case, flagrant discrimination cannot be allowed to continue, only because of delay. Illegality must be redressed and further in this case grant of relief would not result in unsettling things already settled. Therefore this Court is not inclined to reject the present OA on the ground of delay as held by the Hon'ble Delhi High Court in the case of Inspector Rajendra Singh (supra).
14. It is relevant to mention that in a large number of cases, this Tribunal as well as Hon'ble Delhi High Court had directed for grant of notional seniority and entitlement to old Pension Scheme to similarly situated candidates although the facts of those cases are not similar to the facts of the present case. That, the present case is on a better footing as the applicant despite her being issued appointment letter in 2003 and she also gave her willingness in 2003 was denied to join in the garb of OM of 1976 (supra) and the said OM of 1976 was superseded by OM of 1985 which clearly 13 provides that 'it shall no longer be necessary to declare a woman candidate as 'Temporarily Unfit' if she is found to be pregnant during medical examination before appointment against posts which do not prescribe any elaborate training, i.e., they can be appointed straightway on the job.'
15. In the result, in the peculiar facts and circumstances of the case and for the forgoing reasons, the present OA deserves to be allowed. Order accordingly. The respondents are directed to assign seniority to the applicant from the date when she had shown her willingness to join the duty of the post of PGT (Chemistry) and also treat the applicant as member of old Pension Scheme under the Central Civil Services (Pension) Rules, 1972. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/