Central Administrative Tribunal - Delhi
Sh. Bidur Kaushik vs Govt. Of Nct Of Delhi on 24 September, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2325/2011
Reserved on: 18.09.2012.
Pronounced on:24.09.2012.
Honble Mr. Sudhir Kumar, Member (A)
Honble Mr. A.K. Bhardwaj, Member (J)
Sh. Bidur Kaushik,
S/o Sh. Ram Kumar,
R/o BG-6/326-B,
Paschim Vihar,
New Delhi-63. .. Applicant
(through Sh. Ratnesh Bansal, Advocate)
Versus
1. Govt. of NCT of Delhi
Through its Chief Secretary,
Department of Education,
5, Shyam Nath Marg, Delhi.
2. Municipal Corporation of Delhi
Through its Commissioner,
Civic Building, Kamla Market,
Delhi.
3. Dy. Director Education,
Municipal Corporation of Delhi,
Education Department,
South Delhi MCD, Rajouri Garden,
New Delhi. . Respondents
(through Sh. Arun Bhardwaj, Advocate)
O R D E R
Sh. A.K. Bhardwaj, Member (J) The applicant joined as Teacher in Municipal Corporation of Delhi (MCD) School (Madipur, Delhi) w.e.f. 17.10.1973. Subsequently, he was appointed as Assistant Teacher in Primary Bal Vidyalaya Madipur, Delhi (MCD) in terms of letter No. 82 dated 20.08.1974. In due course, he got promotion as Headmaster on regular basis in the pay scale of Rs.5500-9000/-. Finally, he retired from service of MCD w.e.f. 31.12.2006 when he was posted at Delhi Municipal Corporation School, 1212, Paschim Puri, New Delhi. He was granted pension vide PPO No. IS 2696 WZG. Before the applicant retired from service, respondent No.2 i.e. MCD issued letter No. D/117/DEO(TW)/06 dated 15.02.2006 inviting list of such teachers who were appointed in MCD between 1962 to 31.12.1967 to consider their case for grant of selection grade i.e. Rs. 530-630 (Revised to Rs. 6500-10500) w.e.f. 01.01.1998. Having come across the said letter, the applicant sought benefit of service rendered by him in Guru Brahmin Central Sr. Secondary (GBCSS) School, Rohtak from August 1967 to August 1973 as Teacher in MCD. In other words, he wanted his date of appointment as Teacher in MCD to be treated as August 1967 instead of 17.10.1973. He filed OA-2451/2009 claiming the benefit of aforementioned letter dated 15.02.2006 i.e. the selection grade. The said O.A. was disposed of in terms of Tribunals order dated 21.08.2010 with a direction to MCD to verify the fact whether the applicant worked in GBC school, Rohtak till October 1973 and to process his claim for grant of selection scale by reckoning the past service for the purpose of arrears. Questioning the said order passed by this Tribunal, MCD filed WP(C) No. 874/2011 before the Honble High Court of Delhi. In the said Writ Petition, the Honble High Court of Delhi passed the order dated 10.02.2011 modifying the order of the Tribunal to the extent that after verification of the facts by the MCD as directed by the Tribunal, the case of the applicant could be considered for grant of consequential benefits by counting the past service as per Rules/Regulations/Circular in the field. Thus, it was left open to the respondents to examine the claim of the applicant for counting the service in accordance with law. By way of the order passed in Review Application No. 145/2011 filed by the applicant Honble High Court of Delhi vide its order dated 21.03.2011 clarified that the modification of the order dated 10.02.2011 was only for verification of service rendered in the previous school for the purpose of counting the past service.
2. After the said orders passed by this Tribunal and the Honble High Court of Delhi, respondents constituted a team comprising of the following offices/officials:-
(i) Smt. Usha Rani, School Inspector(G) Sh. Hansraj Bhardwaj, School Inspector (MDM) Sh. Ramesh Bhardwaj, Retd. Principal Sh. Rakesh Maan, School Attendant to verify the service rendered by the applicant in GBCSS School, Rohtak. The said team visited the school on 05.03.2011 and obtained requisite information/documents as follows:-
1. Sh. Bidur Kaushik worked as a teacher in GBC Sr. Sec.
School, Rohtak Haryana from 29/8/1967 to Agust 1973.
2. The school is a Recognized and aided school from Haryana Govt.
The Service of Sh. Bidur Kaushik from 1967 to 1973 was not pensionable.
There is no record that ay application of Sh. Bidur Kaushik was forwarded to MCD for his appointment as a teacher in MCD through GBC School Rohtak.
The letter dt. 23/2/1973 which is a experience certificate submitted by Sh. Bidur Kaushik have the words the noc and experience certificate in the beginning & that I have no objection in joining this service in the end of the letter but in its original letter obtained from, GBC Rohtak, these two line were not mentioned. Thus there is a tampering in the experience certificate. On the basis of the report of the said team the Additional Commissioner (Edu.) vide order dated 22.03.2011 rejected the request of the applicant for counting of past service, Dy. Director Education (West Zone) MCD passed a speaking order No. D/8644/DDE/WL dated 23.03.2011 communication of the aforementioned decision to the applicant i.e. the service rendered by the applicant in GBCSS School, Rohtak could not be taken into account as service rendered in MCD for the following reasons:-
1. The service rendered by Sh. Bidur Kaushik in the GBC Sr. Sec. School, Rohtak was non pensionable.
He did not apply for counting of past service within one year.
The pro-rata pension/Gratuity has not been deposited either by the school where he worked earlier or by Sh. Bidur Kaushik.
The past service is counted only for the pensionery benefits and not for grant of seniority. The request of Sh. Bidur Kaushik to count his past service for granting seniority is contrary to the rules on the subject.
3. Questioning the said order, the applicant has filed the present O.A. making the following prayer:-
(a) to call the original record of the respondent including the record of verification of the past service, constitution of the committee and entire record till date.
(b) to set aside/to quash the impugned order No.D/8644/DDE/WZ Dated. 23.03.2011 (Annexure A-1) passed by the respondent M.C.D.
(c)direct the respondent to release the funds/arrears/payment including arrear of pensionary benefit, DA and other allowances time to time regarding selection scale w.e.f. 01.01.1998 onwards as per notification no. D/117/DEO/(TW)/06 dated. 15.02.2006 (Annexure A-7) thereby adjusting the previous service of the GBC High School Rohtak w.e.f. 29.08.1967 to after noon of 17.10.1973 in the record of the service with the respondent MCD.
(d)Any other or further orders/directions may also be passed in favour of the petitioner and against the respondent which this Honble Court deems fit and proper under the facts and circumstance of the case and in the interest of justice.
4. We have heard the learned counsel appearing for the parties and perused the record.
5. The qualifying service of a government servant commence from the date he takes charge of the post to which he is first appointed either substantively or in officiating or temporary capacity. Rule-13 of the CCS (Pension) Rules defines the date of commencement of such service. Conditions subject to which service qualifies for pension are indicated in Rule-14 thereof. The services to be counted for pension are defined in Rules 15 to 23 & 25 of CCS (Pension) Rules. Rules 29, 30 and 31 talk of addition to qualifying service. As can be seen from the impugned order, the O.M. No. 28-10/84-Pension Unit dated 29.08.1984 was adopted by the MCD in the year 1987. In terms of the said O.M., the cases of transfer of Central Government employees to Central Autonomous Bodies and vice versa and of employees of Central Autonomous Body to another Central Autonomous Body may be regulated as per the following provisions:-
(a) In case of Autonomous Bodies where Pension Scheme is in operation.
(i) Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in an autonomous body, the services rendered by him under the Government shall be allowed to be counted towards pension under the autonomous body irrespective of whether the employee was temporary or permanent in Government. The pensionary benefits will, however, accrue only if the temporary service is followed by confirmation. If he retires as a temporary employee in the autonomous body, he will get terminal benefits as are normally available to temporary employees under the Government. The same procedure will apply in the case of employee of the autonomous bodies who are permanently absorbed under the Central Government.
The Government/autonomous body will discharge its pension liability by paying in lumpsum as a one-time payment, the pro-rata pension/service gratuity/terminal gratuity and DCRG for the service upto the date of absorption in the autonomous body/Government, as the case may be. Lumpsum amount of the pro-rata pension will be determined with reference to commutation table laid down in CCS (Commutation of Pension) Rules, 1981, as amended from time to time.
[Note.- Various Ministries/Departments of the Government of India may accept pension liability in all these cases where Central Government employees move to Central Autonomous Bodies with proper permission and discharge the same in the same in the prescribed manner. For this purpose, proper permission means that Government servant applies for the post in Autonomous Body through proper channel and he resigns with due intimation that he is doing so to take up assignment in Autonomous Body or the Government servant is relieved of his duties by the Government Department/Office to take up assignment in an Autonomous Body. Pension liability may also be accepted in past cases, provided the Government servant took up the assignment in Autonomous Body with proper permission. The Ministry of Defence, etc., may please issue specific directions to their Financial Advisers to advise the Autonomous/Statutory Bodies under their administrative control to make the above provisions in their rules and regulations. In cases where any practice other than that mentioned above is presently being followed, the same may b revised in accordance with these decisions and they may also provide for acceptance of pension liability for the past service.]
(ii) A Central Government employee with CPF benefits on permanent absorption in an autonomous body will have the option either to receive CPF benefits which have accrued to him from the Government and start his service afresh in that body or choose to count service rendered in Government as qualifying service for pension in the autonomous body by foregoing Governments share of CPF contributions with interest, which will be paid to the concerned autonomous body by the concerned Government Department. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulate period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.
(b) Autonomous body where the Pension Scheme is not in operation. (i) A permanent Central Government employee borne on pensionable establishment, on absorption under such autonomous body will be eligible for pro-rata retirement benefits in accordance with the provisions of the Ministry of Finance O.M. No.26(18)EV(B)/75 dated the 8th April, 1976, as amended from time to time. In case of quasi-permanent or temporary employees, the terminal gratuity as may be admissible under the rules would be actually payable to the individual on the date when pro-rata retirement benefits to permanent employees become payable. However, in the case of absorption of a Government employee with CPF benefits, in such an autonomous organisation, the amount of his subscriptions and the Governments contribution, if any, together with interest thereon shall be transferred to his new Provident Fund account with the consent of that body.
(ii) [An employee of an autonomous body on permanent absorption under the Central Government will have the option either to receive CPF benefits which have accrued to him from the autonomous body and start his service afresh in Government or choose to count service rendered in that body as qualifying service for pension in Government by foregoing employers share of Contributory Provident Fund contributions with interest thereon, which will be paid to the concerned Government Department by the autonomous body. The option shall be exercised within one year from the date of absorption. If no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final.] Absorption of employees of one Central Autonomous body to another Central Autonomous Body:
The above procedure will be followed mutates mutandis in respect of employees going from one Autonomous Body to another. As can be seen from the aforementioned O.M. dated 29.08.1984 the service rendered by the applicant in GBCSS School, Rohtak could be counted for pensionary benefits in MCD subject to fulfillment of the following conditions:-
His application for appointment as teacher in MCD should have been forwarded by his previous employer i.e. GBCSS School.
He should have given technical resignation from the post held by him in the said school.
The GBCSS School should have intimated that he had submitted his technical resignation to take up assignment in MCD. GBCSS School ought to have been a pensionable establishment. The option to get benefit of service rendered in previous organization i.e. GBCSS School ought to have been exercised within one year from the date of joining the MCD and capitalized value of pension for the period of service rendered in GBCSS School ought to have been deposited in MCD either by the said school or by the applicant. For easy reference, paras 4 to 9 of the said O.M. dated 29.08.1984 are extracted hereunder:-
4. Central autonomous body means body which is financed wholly or substantially from cess or Central Government grants. Substantially means that more than 50% of the expenditure of an autonomous body is met through cess or Central Government grants. Autonomous body includes a Central statutory body or a Central University but does not include a public undertaking.
Only such service which qualifies for pension under the relevant rules of Government/Autonomous body shall be taken into account for this purpose.
5(1). The employees of a Central autonomous body or Central Government, as the case may be, who have already been sanctioned or have received pro-rata retirement benefits or other terminal benefits for their past service will have the option either:-
(a) to retain such benefits and in that event their past service will not qualify for pension under the autonomous body or the Central Government, as the case may be : or
(b) to have the past service counted as qualifying service for pension under the new organisation in which case the pro-rata retirement or other terminal benefits, if already received by them, will have to be deposited alongwith interest thereon from the date of receipt of those benefits till the date of deposit with the autonomous body or the Central Government, as the case may be. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In other cases, where pro-rata retirement benefits have already been sanctioned but have not yet become payable, the concerned authorities shall cancel the sanction as soon as the individual concerned opts for counting of his previous service for pension and inform the individual in writing about accepting his option and cancellation of the sanction. The option shall be exercised within a period of one year from the date of issue of those orders. If no option is exercised by such employees within the prescribed time limit, they will be deemed to have opted for retention of the benefit already received by them. The option once exercised shall be final.
NOTE.- It has been decided that wherever the employees are required to refund the pensionary benefits received by them for the service already rendered by them under the Central or State Government or Autonomous Bodies in order to avail of the benefit of counting of past services for pension purposes in terms of the provisions of Rules 17 to 20 of CCS (Pension) Rules,1972 and Department of Pension and Pensioners Welfare, O.M. No. 28/10/84-PU, dated the 29th August, 1984, as amended from time to time, the rate of interest will be the rate applicable on GPF accumulations from time to time for the period from the date of receipt of pensionary benefits to the date of their refund to the Government/Autonomous Body.
2. In cases whereafter the issue of the orders by the competent authority on the basis of option exercised by an employee or counting of past service for pensionary purposes, if an individual does not deposit the pensionary benefits already received by him within one month of the receipt of communication from the Government/Autonomous Body, a penal interest at two per cent per annum will be charged in addition to normal rate of interest mentioned above.
3. The rate of interest mention in Para.1 above will be applicable in cases of Government servants/employees of Autonomous Bodies where pensionary benefits already drawn have not been refunded to Government/Autonomous Body, as on date of issue of this OM.
5.(2) Where no terminal benefits for the previous service have been received, the previous service in such cases will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with the principles laid down in this Office Memorandum. In no case pension contribution/liability shall be accepted from the employee concerned.
6 These orders will be applicable only where the transfer of the employee from one organization to another was/is with the consent of the organization under which he was serving earlier, including cases where the individual had secured employment directly on his own volition provided he had applied through proper channel/with proper permission of the administrative authority concerned.
7. [These orders will take effect from the date of issue, viz., 29th August, 1984. The benefits under these orders should also be extended to all those who had retired prior to the issue of these orders and who are otherwise eligible for the benefit of counting of service thereunder. The arrears of pension, if any, which become due to the concerned pensioners, would be disbursed to them with effect from 29-8-1984 only and that they would not be entitled to get any relief in respect of the period prior to 29-8-1984.]
8. The provisions contained in the Ministry of Finance, Office Memorandum No.26(18)EV(B)/75 dated the 8th April, 1976 [Order (4) and O.M. No.25(1)EV/83, dated the 8th September 1983 [not printed] or any other orders shall, in so far as it provides for any of the matters contained in this Office Memorandum, cease to operate.
9. The Ministry of Education and Culture etc. are requested to advise the autonomous/statutory bodies under their administrative control, with specific directions to the Financial Advisers concerned, to ensure to make necessary provisions in their Rules and Regulations/ Articles of Association in accordance with the provisions contained in this Office Memorandum. In cases where any practice otherwise than enumerated above is presently being followed the same may be revised in accordance with the provisions of this Office Memorandum so that uniformity is maintained in such matters in all the organizations.
6. In the present case, admittedly the GBCSS School was a non-pensionable establishment, there is no record to show that the application of the applicant for his appointment in MCD was forwarded for GBCSS School and he gave the technical resignation before taking up the employment in MCD. As per the stand taken by the applicant himself in his representation dated 24.12.2008 addressed to the Director (Primary Education), he served in GBCSS School till 1973 while he was appointed in MCD in October 1973 only. Beside, in Column-11 of his application form he described his experience of teaching as 5 years from 1967 to 1972 and in Column-12 of the said application he mentioned that he was not employed in any service. The said application form was signed by the applicant on 18.06.1973. Thus, when the applicant did not fulfill the condition laid down in O.M. dated 29.08.1984, he was not entitled to get the benefit of the service rendered by him in GBCSS School for the purpose of pensionary benefits.
7. Further, the vital issue which needs to be addressed in the present case is the claim of the applicant for selection grade made admissible to the teachers appointed in MCD between 1962 to 31.12.1967. In order to do so, we need to see whether the applicant could be treated as an employee of MCD w.e.f. August 1967. Apparently, the aforementioned O.M. dated 29.08.1984 talks of counting of length of service for the purpose of pensionary benefits and does not provide for calculation of said service for the purpose of seniority or determination of date of appointment. There is no such rule which provide for fixation of seniority of a direct recruit with reference to the date of his appointment in the previous service. Only in case of absorption of a deputationist, the service rendered by him on an analogous post in parent department is taken into account for the purpose of determination of seniority. In the O.M. dated 16.06.1980 it is specifically provided that officers re-employed after they had retired/discharged, whether from Defence or Civil employment prior to the attainment of the age of superannuation under the civil rules, will, if appointed to civil posts under the provisions of the Recruitment Rules applicable to direct recruits, be treated as direct recruits and their seniority in the grade should be fixed accordingly.
The said O.M. reads as under:-
5. Determination of seniority of re-employed officers for promotion/confirmation.- 1. The question of determination of seniority of re-employed officers should arise only in cases where the officers are re-employed before they attain the age of normal uperannuation.
2.(1) Officers who are re-employed after they had retired/discharged, whether from Defence or Civil employment prior to the attainment of the age of superannuation under the civil rules, will, if appointed to civil posts under the provisions of the Recruitment Rules applicable to direct recruits, be treated as direct recruits and their seniority in the grade fixed accordingly.
(2) However, where such officers are appointed to civil posts and the recruitment rules applicable thereto prescribe re-employment as a distinct mode of recruitment, their seniority will be determined as under-
(a) The inter-se seniority of persons so reemployed shall be determined in accordance with the order of their selection.
(b) The relative seniority of persons so re-employed in relation to direct recruits and promotees shall be determined-
(i) Where the recruitment rules prescribe specific quotas for each of the categories, on the basis of rotation of vacancies based on the said quotas.
(ii) In other cases, on the basis of the chronology of selection.
3. In the case of officers referred to in para 4 above, their confirmation and promotion to higher posts would take place with reference to the seniority so fixed.
4. These instructions would apply subject to any special provisions that may be applicable to particular services/posts in terms of the recruitment rules applicable to those services/posts.
8. In the present case, admittedly the applicant had applied for the post of Teacher in MCD with reference to the advertisement published in 1973 for direct recruitment. As per record, he had not forwarded the said application through GBCSS School, Rohtak claimed by him as his previous employer. Rather, in his application form he had declared himself as not employed anywhere. In the circumstances, he is rightly treated as an employee of MCD w.e.f. 16.10.1973 and under no provision or law his date of appointment in said Corporation can be treated as August 1967. Apparently, the benefit of the letter dated 15.02.2006 is admissible to such teachers who were appointed between 1962 to 31.12.1967. Applicant being so appointed only on 16.10.1973 is not entitled to the benefit of the said letter dated 15.02.2006.
9. In view of the above facts and circumstances, the present Original Application is found devoid of merit and is accordingly dismissed. No costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /Vinita/