Central Administrative Tribunal - Ernakulam
C T Safiyabi vs The Administrator Union Territory Of ... on 21 March, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
CIRCUIT BENCH, KAVARATTI, LAKSHADWEEP
Original Application No.181/00765/2019
Monday this the 21st day of March 2022
CO RAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
C. T. Safiyabi, Retired Gramasevika & Officer-in-Charge,
Women & Child Development Unit Office, Kalpeni,
Residing at Cheruthotham House,
Kalpeni Island, U.T. of Lakshadweep - 682 557.
- Applicant
(By Advocate: Mr. Vishnu S. Chempazhanthiyil)
versus
1. The Administrator, Union Territory of Lakshadweep,
Kavaratti - 682 555.
2. The Secretary, Women & Child Development,
Union Territory of Lakshadweep, Kavaratti - 682 555.
3. The Director, Women & Child Development,
Union Territory of Lakshadweep, Kavaratti - 682 555.
- Respondents
(By Advocate: Ms. Sreekala K L)
This application having been heard on 04.03.2022 at the sitting of the
Circuit Bench at Kavaratti, Lakshadweep, the Tribunal on 21 st March 2022
delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicant submits that she was initially engaged from 18.07.1978 as a Gramasevika in a Border Area Project under the Lakshadweep Social Welfare Board. She was drawing salary, etc., as per the Union Territory Government Pay Scales with eligibility for pension. It was later decided to phase out the Border Area Project and -2- to absorb the employees under the Integrated Child Development Scheme or other similar schemes under the Women and Child Development Department of the Lakshadweep Administration in a phased manner as per the orders at Annexure A1 dated 16.05.2011. The applicant then continued to work under the Women and Child Development Department, though she was not absorbed or regularised till her retirement on 31.12.2015. Since her pension was not sanctioned, she filed O.A No. 181/00542/2016 for a direction to sanction, draw and disburse retiral benefits including monthly pension to her. The O.A was allowed by a single bench of this Tribunal on 06.12.2016. The Tribunal relied on the identical nature of the case O.A 181/44/2015 and passed similar orders. The direction of the Tribunal was as follows:
"This Tribunal directs the respondents 1 to 3 to ensure that the applicant is paid all arrears of her salary as prayed for, retiral benefits due to her and the regular monthly pension along with arrears, within two months from the date of receipt of a copy of this order. If they fail to do so the respondents shall pay interest @9% on the amounts due from the date on which such amounts fell due till the date of actual payment. It is further ordered that respondents shall pay the monthly pension due to the applicant regularly, without any default. The O.A is allowed to the above extent."
(emphasis applied)
2. A copy of the order in O.A 181/00542/2016 has been produced at Annexure A2 in this O.A. A copy of the order in the case which was relied on, i.e., O.A. No. 181/00044/2015 has also been produced at Annexure A3. It is the contention of the applicant that the Order at Annexure A2 passed in her case has now become final, especially the -3- direction that the respondents should pay monthly pension regularly without any default. However, to the contrary, there have been delays in payment of her monthly pension. She submits that some other former employees of the Border Area Project who were later in the Women and Child Development Department have also got revised pensionary benefits on the basis of 7th CPC, while the same has not been sanctioned to her. She, therefore, submitted a representation on 16.11.2018 (produced at Annexure A4) for getting the pensionary benefits as per 7th CPC and disbursement of the arrears. However, instead of taking any action, even the monthly pensionary benefits due to her have not been released since March 2019. On the other hand, her juniors who had worked along with her in the Border Area Project (and later in the Women and Child Development Department) and who had also retired subsequent to her, were getting monthly pension regularly along with the arrears of the 7th CPC with revised pensionary benefits.
3. It is the submission of the applicant that this anomaly of juniors/subordinates to her who had worked along with her in the Border Area Project and were subsequently brought under Women & Child Development Department getting regular pension, whereas her pension is being released only intermittently, is due to the fact that she was not absorbed in the Women & Child Development Department before her retirement, whereas her subordinates/junior colleagues were absorbed before they retired. To establish that she is senior to the other -4- staff, she has produced a copy of the seniority list of Gramsevikas under the Lakshadweep State Social Welfare Advisory Board as on 01.12.1986 at Annexure A5. As per this list the applicant, Smt. C. T. Safiyabi appears at serial no. 3. Above her there is the name of Smt. K. Ayshabi at serial no. 1 and below her are the names of Smt. M. K. Nafeesabi, Smt. U. P. Faridabi and Smt. M. P. Kadeeja which appear at serial no. 6, 7 & 8 respectively. She submits that the Lakshadweep Administration had passed an order on 14.02.2013 (produced at Annexure A7) absorbing her senior Smt. K. Ayshabi as a Mukhyasevika (MS) along with another official called Smt. L. Rahmath who was also absorbed as Mukhyasevika. As a result of this, a post of Lady Village Extension Officer (LVEO) had fallen vacant and was available for absorption. She made an application dated 27.02.2013 on this basis for absorption to the post of LVEO while she was still in service, a copy of which has been produced at Annexure A6. It was pointed out in the representation that she was the next eligible person for the promotion to the post of LVEO. The Director, Women & Child Development Department was requested to absorb her to the post of LVEO in the vacancy of Smt. L. Rahmath who had been promoted as Mukhyasevika. It is submitted that no action was taken on this representation and she continued without absorption as LVEO despite the availability of vacancy, till her retirement on 31.12.2015. -5-
4. It is submitted by the applicant that subsequent to her retirement her juniors, at serial no. 5, 7 & 8 in the seniority list produced at Annexure A5, were absorbed by the Women & Child Development Department through the Order produced at Annexure A8 dated 10.03.2019. She submits that it can be seen from this Order that against the name of Smt. U. P. Faridabi at serial no. 1, it has been indicated that the official is absorbed against the vacancy of Village Extension Officer (Lady) lying vacant w.e.f 15.02.2013, consequent to the promotion of Smt. L. Rehmath. The applicant submits that she had been eligible and entitled to be absorbed and even had made a request as at Annexure A6 for the same. The proof that the post was lying vacant is evident from Annexure A8. Annexure A8 order reveals that the vacancy of LVEO arose on 15.02.2013 and the same was filled up only on 10.03.2019. On the other hand, the applicant had represented for her absorption on 27.02.2013 (Annexure A6) but as nothing was done, had to retire from service without absorption on 31.12.2015. The applicant then made another representation though she had already retired, on 30.08.2019, which is produced at Annexure A9. A request was again made to absorb her in the vacant post of LVEO, Mukhyasevika or in any vacant post under the Department of Women & Child Development and also to take steps to give her monthly pension regularly on the basis of 7th CPC along with the others. -6-
5. The applicant submits that the real problem in her case is that the pension due to her is released only as and when funds are available to be released from the grants-in-aid, whereas, her juniors as well as her senior, Smt. K. Ayshabi, get their pension regularly without break or delay along with revision plus arrears. The only reason is that they were regularly absorbed in posts in the Department. Thus, if she too had been absorbed in the vacancy which arose on 15.02.2013 instead of keeping it unfilled till 10.03.2019, this contingency, which is to keep waiting for funds before releasing pension due to her, would not have arisen. It is submitted that the respondents have a bounden duty to ensure that she gets her montly pension in a regular manner, along with the revised pension and arrears under the 7 th CPC, in the same way that her former colleagues who worked with her in the Border Area Project and were transferred to Women & Child Development Department are getting the same. The fact that she is not getting it regularly is discrimination and an infringement of Articles 14, 16 and 21 of the Constitution of India. The only permanent solution to the fact that her monthly pension is being released only intermittently as and when funds are available, is to order the respondents to issue orders to absorb her in the vacant post of Lady Village Extension Officer with effect from 15.02.2013 till her date of retirement on 31.12.2015. The reliefs sought in the O.A are thus as follows:
"(i) Direct the respondents to release monthly pension of the applicant due from March 2019 onwards with 9% interest forthwith.-7-
(ii) Direct the respondents to revise the pensionary benefits of the applicant under the 7 th CPC and release its arrears from 01.01.2016 onwards, with 9% interest forthwith.
(iii) Direct the respondents to continue to pay monthly pension regularly to the applicant without any default.
(iv) Direct the respondents to absorb the applicant in the vacant post of LVEO that arose on 15.02.2013 (as claimed by the applicant in Annexure A6).
(v) Declare that non release of pensionary benefits of the applicant from March 2019 and the non sanction of revised pension under the 7th CPC due from 01.01.2016 is illegal, arbitrary and discriminatory and direct the respondents to ensure the entitled payments are to be released without any delay with interest at the rate of 9%.
(vi) Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
(vii) Award the cost of these proceedings."
6. The O.A was filed in October 2019 seeking the above reliefs. The respondents filed their reply only by July 2020. It was submitted by them at the outset that the Department had already paid all the retirement benefits to the applicant including the monthly pension upto September 2019. A copy of the letter crediting the amount was produced at Annexure R1(a). Further, monthly pension of October 2019 was also sanctioned to the applicant as per the order produced at Annexure R1(b). It was also submitted that her pension under the 7 th CPC has been revised and that pension arrears from 01.01.2016 onwards will be paid after getting funds from the Finance Department, -8- Secretariat, Kavaratti. It was submitted that all the staff who had been working under the Border Area Project were later attached to the Department of Women & Child Development. Their salary and allowances were paid from the grants-in-aid provided by the department as the Department could not absorb many of the staff for want of similar posts and vacancies. In addition, in the specific case of the applicant, it was seen that she retired from service on 31.12.2015. The respondents submitted that her monthly pension is being paid regularly. She has been paid her retirement benefits without any arrears pending in the Department. It is, however, accepted by the respondents, that all the Border Area Project staff who were absorbed by the Department against regular posts while in service are getting their monthly pension through the regular pension scheme. When the action to absorb the Border Area Project staff against regular vacancies was taken, the applicant was not in service as she had retired on 31.12.2015. It is submitted that the Recruitment Rules to absorb the remaining staff from the Border Area Project according to availability of vacancies, were amended and issued only in March 2019. Thus, the absorptions were effected only from 10.03.2019, when the applicant was not in service. The respondents submit that Smt. K. Ayshabi, Mukyasevika working under the Border Area Project was also absorbed against the existing vacancy of Mukyasevika under the Department [It may be noted, however, that the contention of the applicant is that Smt. K. Ayeshabi, Mukyasevika was absorbed much earlier, vide the orders -9- dated 14.02.2013 produced at Annexure A7 in the O.A, before the absorption of all the other officials was done in 2019.]
7. The respondents also submit that the office order dated 16.05.2011, produced at Annexure A1 in the O.A shows that the decision taken was that the former Border Area Project employees would be absorbed in the Lakshadweep Administration in the Department of Women and Child Development in a phased manner, for which it had been decided to create posts in the next Plan of the department. However, in actuality, no post was created under the Plan scheme for absorption. Much later, after continuous representations by the staff, the administration took a decision to absorb the remaining staff by amending the existing Recruitment Rules as per notification FNo.28/01/2011-WCD dated 04.03.2019. Hence, the case of the applicant could not be considered for absorption owing to her retirement.
8. We have during the sitting of the Circuit Bench at Kavaratti on 04.03.2022, heard learned counsel for the applicant, Sh. Vishnu S. Chempazhanthiyil, as well as learned counsel for the respondents Smt. Sreekala K L. Learned counsel for the applicant submitted during the hearing that the applicant has not got her monthly pension from October 2021. Action has not been taken to release to her all the pensionary benefits due under 7th CPC. It is submitted that these steps -10- have not been taken even though the orders in the O.A No. 181/00542/2016 were to the respondents to pay monthly pension regularly without any default. It is submitted that it is not possible for the applicant to keep approaching the Tribunal each time the respondents deprive or delay the monthly pension or arrears due to her. While the applicant's pension under 7 th CPC may have been revised, this problem of regular payment of monthly pension continues. Learned counsel contended that the only reason why the applicant has faced this situation of irregular payment of monthly pension is the fact of her non-absorption to a regular post. Those who are similarly situated to her, like her former junior colleagues who had been absorbed, do not face this situation. Hence there is discrimination against her. It was reiterated that when her senior was absorbed as per Annexure A7 dated 14.02.2013, she had submitted the request dated 27.02.2013 at Annexure A6 to be absorbed in the vacant post of LVEO. However, no action was taken. The post of LVEO was kept vacant from 15.02.2013 to 10.03.2019, as revealed by the orders produced at Annexure A8, till one of her juniors was absorbed while she retired on 31.12.2015. Thus, effectively, the post was kept vacant from 15.02.2013 to the date of her superannuation. Therefore, it is obvious that one senior and three of her juniors were absorbed and she was not, despite the availability of a clear vacancy and despite her requests. -11-
9. Learned counsel also drew attention to Rule 8 and Rule 9 of the CCS (Pension) Rules, 1972 which are applicable in her case. Rule 8 specifies that "Pension is subject to future good conduct". The Government of India decision No. 1 under Rule 8 clearly states that, "Stoppage or reduction of pension for reasons other than misconduct is not permissible." It has been reiterated therein that "Pensions are not in the nature of reward but there is a binding obligation on Government which can be claimed as a right. Their forfeiture is only on resignation, removal or dismissal from service. After a pension is sanctioned, its continuance depends on future good conduct vide Article 351, CSR [Rule 8, CCS (Pension) Rules, 1972] but it cannot be stopped or reduced for other reasons." As there has been no allegation relating to any misconduct, etc., on her part, the delay in release of her pension is illegal. It is submitted that the main problem even now is that her pension depends on the availability of sufficient funds by way of grant-in-aid in the hands of the Department, as it is from this that the said pension is sanctioned to her. Thus, whenever there is a shortage of funds or any other competing demand for using the grant-in-aid, regular payment of her pension is affected. It is submitted that the only permanent solution which is possible would be to order her regularisation in service w.e.f 15.02.2013. The learned Counsel for the respondents however argued that while the order for absorption of the employees of the Border Area Project was issued on 16.05.2011, vide Annexure A1, it was clearly indicated therein that this absorption -12- would take place in a phased manner. To do so various posts had to be created under the next Plan outlay in the Department. The applicant retired on 31.12.2015 and these posts were not created by then to enable her absorption. The posts were only created vide the Recruitment Rule amended on 04.03.2019 and thus the applicant could not be considered for absorption.
10. We have considered these contentions and have perused the documents provided in the O.A. The applicant has based her prayer for regularisation/absorption on the fact that one of her seniors, Smt. K. Ayeshabi, was regularised on 14.02.2013 and another official, Smt. L. Rahmath, was also absorbed on the same day even when the so called posts under 'Plan' were yet to be created. Hence, one post of Lady Village Extension Officer was available in the Department of Women & Child Development from that day. There was no bar on the respondents to have absorbed her against this vacant post. This is also clearly established by the fact of Smt. K. Ayeshabi's regularisation/absorption. The contention of the respondents that no posts under 'Plan' were created till 2019, thus precluding the absorption of the applicant, has to be viewed in light of the absorption of her senior Smt. K. Ayeshabi in 2013 in an existing post which was already existing in the Department of Women & Child Development. Smt. K. Ayeshabi was, like her, a former employee of the Border Area Project which was later made part of the Women & Child Development -13- Department. Thus it stands to reason that if absorption could take place in the case of Smt. K. Ayeshabi, a similar order could have well been passed in her case, without waiting for the 'Plan' posts to be created. In any case the Department delayed creation of these posts till much later only in 2019 in spite of regular representations given by the applicant as well as her other colleagues. It is this failure of the Department to adjust the applicant against the existing vacant post in the Department of Women & Child Development that has created the problem of delay in the release of pension in her case, as she is now dependent on the availability of funds under the Grant-in-aid.
11. We have tried to consider a way out of this problem carefully. We realise that it is not possible to order that the first charge against any available funds under the grant-in-aid with the Department should be earmarked for the monthly pension of the applicant. The Department has various activities which are oriented for the welfare of all the women and children of the Lakshadweep Islands. Thus, specifying that a certain amount of the grant-in-aid available at any time should be earmarked towards the monthly pension of the applicant may not be in the overall interest of the inhabitants of the Islands. We are sympathetic to the contentions of the applicant. Learned counsel has also pointed out that the Recruitment Rules did not create any new posts. On the other hand, the respondents have also not provided us with a clear picture about whether posts were available to effectively regularise the -14- applicant w.e.f 15.02.2013 when the post of Lady Village Extension Officer got vacant due to the promotion of Smt. L. Rehmath. Applicant's counsel has contended that even prior to amendment of Rules in 2019 there existed 10 posts of Gramsevikas/LVEOs.
12. We therefore direct the Lakshadweep Administration to take steps for the absorption/regularisation of the applicant w.e.f 15.02.2013 if the applicant is eligible for the same as it appears that at least one post was lying vacant on that day from the information produced in the O.A at Annexures A7 & A8. It has been pointed out by the counsel for the applicant that such regularisation would not involve any extra cost or create any other difficulties for the respondents. He has pointed out that it is only a technical step to give the applicant a notional regularisation in order that the payment of pension in her case is done in a regular manner without any delays as is the case at present now. We, accordingly, direct the respondents to take the steps as indicated above immediately.
13. We also note, in this connection, that our direction is in line with earlier orders of this Tribunal in O.A 181/00542/2016 which had laid down that the respondents should pay monthly pension to the applicant regularly without any default. It also appears that similar orders were also passed in O.A 181/00044/2015 in another case relating to the absorption of a Craft Teacher under the Department of Women & Child -15- Development. It was noted in that matter that the Lakshadweep Administration had not made very serious attempts to absorb the Border Area Project employees of the Department of the Women & Child Development in a phased manner, unlike what was approved by the Order produced at Annexure A1 in this O.A. We reiterate the directions in O.A 181/00542/2016 regarding the payment of interest on delays in payment of benefits as well as arrears. The decision in O.A 181/00542/2016 was that in case the respondents had failed to do the payment of arrears they would have to pay interest at the rate of 9% on the amount due from the date on which such amount is due till the date of actual payment.
14. Thus, we direct the respondents to immediately release the up-to-date pension/monthly pension arrears due to her. They should also pay interest at the rate of 9% on any delay of the sanction of revised pension under the 7 th CPC as well as delay in payment of monthly pension to the applicant. This action should be immediately done, notwithstanding the steps taken for her regularisation/absorption which we had ordered. Till the orders are passed regarding her absorption/regularisation from 15.02.2013, it is thus also directed that the respondents should continue to regularly pay the applicant all arrears as well as the monthly pension along with interest due for delays without any further default. In any case, the decision relating to her -16- regularisation/absorption w.e.f 15.02.2013 should be taken by the respondents within a period of two months of the date of receipt of a copy of this order.
15. The O.A is disposed of with the above directions. No order as to costs.
(K.V.EAPEN) (P.MADHAVAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp
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List of Annexures
Annexure A1- True copy of the office order No. F. No. 28/1/2010-WCD
dated 16.05.2011 issued by the 3rd respondent.
Annexure A2- True copy of the order dated 06.12.2016 in O.A No.
181/00542/2016 of this Hon'ble Tribunal.
Annexure A3- True copy of the order dated 08.03.2016 in O.A No.
181/00044/2015 of this Hon'ble Tribunal.
Annexure A4- True copy of representation dated 16.11.2018 to the 3 rd
respondent.
Annexure A5- True copy of final seniority list of Gramasevika's Border
Area Project as on 01.12.1986.
Annexure A6- True copy of the representation dated 27.02.2013 to the
3rd respondent.
Annexure A7- True copy of Office Order No. F. No.3/10/2012-W&CD
dated 14.02.2013 issued by the 3rd respondent.
Annexure A8- True copy of Office Order No. F. No. 28/1/2011-WCD
dated 10.03.2019 issued by the 3rd respondent.
Annexure A9- True copy of the request dated 30.08.2019 to the 3 rd
respondent.
Annexure R1(a)- True copy of the letter issued to the bank for crediting the amount in the bank account of the applicant.
Annexure R1(b)- True copy of the order F. No. 35/6/2018-WCD dated 02.12.2019.