Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs The Union Of India on 13 July, 2012
1 OA NO.267/2010 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION No.267/2010 Dated this Friday, the 13th day of July, 2012. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Shri Atul Pandey R/at. 102/01 NAD Colony, Bazar Area, Naval Station, Karanja Uran, Dist. - Raigad. ... Applicant (By Advocate Ms. Priyanka M.) VERSUS 1. The Union of India, through the Secretary, Ministry of Defence, Room No.198, South Block, New Delhi 110 011. 2. The Secretary, Ministry of Railways, Railway Board, Rail Bhawan, New Delhi 110 011. 3. The Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pension, North Block, New Delhi 110 001. 4. The Chief General Manager, Naval Armament Depot, Near Koth Road, Vishakhapatnam 530 009. 2 OA NO.267/2010 5. The Chief General Manager, Naval Armament Depot, Gun Gate, Naval Dockyard, Mumbai 400 023. ... Respondents (By Advocate Shri V.S. Masurkar along with Shri P. Khosla) O R D E R Per: Smt. Chameli Majumdar, Member (J)
The Applicant is presently working as Manager, Naval Armament Depot, Karanja, Uran, Dist. Raigad. The challenge in this Original Application is towards holding the Applicant arbitrarily to be governed by the new contributory pension scheme which came into effect from 01.01.2004 applicable to all the new entrants to Central Government joining service with effect from 01.01.2004.
2. The Applicant has prayed, inter alia, for the following reliefs:
b. This Hon'ble Tribunal may be further pleased to hold and declare that the Applicant being a UPSC recruitee of 2001 Batch of Engineering Examination is to be covered by the Provisions of CCS(Pension) Rules, 1972.
c. This Hon'ble Tribunal may be further pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the order dated 19.01.2006 issued by Respondent No.4.3 OA NO.267/2010
d. This Hon'ble Tribunal may further be pleased to direct the Respondents to extend the benefits of CCS(Pension) Rules, 1972 to the Applicant notwithstanding the fact that he joined the appointment w.e.f.12.04.2004. e. This Hon'ble Tribunal may further be pleased to direct the Respondents to refund the amount deducted from his pay toward New Pension Scheme introduced w.e.f.01.01.2004, since his appointment.
3. The facts of the case, in short, is that the Applicant appeared for the Engineering Services Examination, 2001, conducted by the UPSC and he was declared successful in June, 2002. He was informed by letter dated 27.02.2002 issued by UPSC that he has qualified for interview and Personality Test on the basis of results of the written examination held in 2001. Thereafter, the Applicant was called for Medical Examination by letter dated 03.06.2002 issued by the Railway Board. The name of the Applicant in the result appears at Sl. No. 47 out of 117 Engineers selected for the trade of Mechanical Engineering in respect of vacancies of the year 2001. The Applicant received his appointment letter on 11.02.2004. The Applicant, thus, joined the post in April, 2004. The applicant has pleaded 4 OA NO.267/2010 that although no formal intimation was given by the Railway Board to the Applicant about his selection to INAS Cadre, yet his offer of appointment letter dated 11.02.2004 mentions letter dated 09.08.2002. The dates of appointment and joining the INAS Cadre of 4 Engineers, selected along with the Applicant, were given as follows:-
Sl.
No. Name Date of appointment Date of joining 1 Shri Sanjay Kumar Dubey June, 2003 July, 2003 2 Ms. Manisha Nagarch June, 2003 July, 2003. 3 Sh. Navneet Sharma June 2003 October, 2003 4 Sh. Atul Pandey February, 2004 April 2004 5 Sh. Pankaj Kumar Singh March, 2004 July, 2004 The first three candidates were given offer of appointment in June 2003 itself and the Applicant and the 5th candidate were not given offer of appointment at the same time but were given appointment letter only on 11.02.2004.
According to the Applicant, he made representations to DOPT and UPSC for issuing appointment letter. He received replies that he would be given offer of appointment very soon. He has stated at paragraph 4.7 of the O.A. that he misplaced the representations and the replies 5 OA NO.267/2010 from the authorities except one electronic acknowledgment receipt of UPSC, which is annexure A-6 to this O.A. He received replies that he would be given offer of appointment very soon.
4. The grievance of the Applicant is that by the time he received his offer of appointment, the Government of India, Ministry of Finance, Department of Economic Affairs, ECB & PR Division, by notification dated 22.12.2003, approved the proposal to implement the new restructured defined Contribution Pension System for the new recruits to Central Government joining service w.e.f. 01.01.2004. The new Pension Scheme replaced the then existing CCS (Pension) Rules 1972 w.e.f. 01.01.2004. The CCS (Pension)Rules, 1972 continued to govern all the employees selected before 31.12.2003. He stated that his batchmates under the same Ministry of Defence, who received appointment letters prior to him, are now governed by the CCS(pension) Rules, 1972. However, the Applicant is arbitrarily and illegally compelled to be covered by the new scheme which came into force 6 OA NO.267/2010 w.e.f. 01.01.2004 under which he has to contribute 10% of his basic pay plus dearness allowance which is being deducted from his salary bill every month. The CCS(Pension)Scheme 1972 is very much different and more beneficial to employees. Had the Applicant been given appointment letter in 2002 or at least in 2003, he would have also joined immediately and would have been governed by CCS(Pension) Rules, 1972.
5. The Respondents filed their written statement and raised the preliminary objection with regard to delay in filing the Original Application. According to Respondents, the cause of action arose on 19.01.2007 whereas the O.A. has been filed on 15.03.2010. The Applicant has joined Naval Armament Depot, Visakhapatnam after 01.01.2004 and, therefore, he has been placed under New Pension Scheme as per the Govt. of India, Ministry of Finance Notification dated 22.12.2003. The Gazette Notification dated 22.12.2003 states that the candidates joining Govt. of India service on or after 01.01.2004 will be governed by New Pension Scheme. As the Applicant joined in the present service during 7 OA NO.267/2010 April, 2004, he has been correctly placed under the New Pension Scheme. Placement of candidates in New Pension Scheme does not depend on the merit secured in any competitive examination.
6. The respondents pleaded that the implementation of the New Pension Scheme published by the Govt. of India depends on the date the candidate joins the service, i.e., on or after 01.01.2004, and is not based on the date of arising of the vacancy. The averment made by the Applicant that the rules which were prevalent at the time the post had fallen vacant would govern appointment to such posts, is not correct as it is well known that the system of recruitment to a government job takes time. The salient feature deciding whether individual will be guided by CCS(Pension) Rules, 1972 or by the New Pension Scheme is the date of joining service only. Therefore, the Applicant has been placed under New Pension Scheme. As per the Government of India Notification dated 22.12.2003, New Pension Scheme is required to be extended to all those Central Government employees who joined service on or after 8 OA NO.267/2010 01.01.2004. The cut off date is with reference to date of joining and is not related to year of recruitment/examination or any other factor. It is a policy matter of Government. Being a direct recruitment post, certain mandatory pre- appointment formalities of the candidates are required to be completed viz. verification of character and antecedents by the District Police authorities, Medical examination by District Hospital before issuance of offer of appointment letter, which takes considerable time and depends upon action taken by the concerned State level authorities. Verification of character and antecedents of the officer was monitored vigorously by the District authorities, which took considerable time in the matter. After completion of pre-appointment formalities, the matter was taken up with the Ministry of Defence for issue of offer of appointment to the officer. The offer was issued to the officer after approval by the Appointing Authority, i.e., Ministry of Defence.
7. The Learned Counsel for the applicant submitted that the new pension scheme came into 9 OA NO.267/2010 force only w.e.f. 01.01.2004 whereas the Applicant was selected for the post which was declared vacant in the year 2001. These posts were declared well in advance for the specific year. Therefore the Rules prevailing at the time the vacancy had occurred need to be applied to him strictly. In this regard the she placed reliance on the judgment of the Apex Court in the case of Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, AIR 1983 SC 852 as well as the recent judgments by the Hon'ble Supreme court. She submitted that the New Pension Scheme of 2004 can be made applicable in respect of selectees against the post which fell vacant after 01.01.2004.
8. The Learned Counsel appearing for the Applicant further submitted that the Applicant is a recruit of 2002 batch. The Applicant relied on DOPT OM dated 10.06.2010. The subject matter of the said O.M. is 'Non-Functional Upgradation (NFU) for officers of Organized Group 'A' Services in PB-3 and PB-4. The said O.M. reads as follows :
A reference is invited to this Department's O.M. of even number dated 24.4.09 on the above subject. The Sixth Central Pay Commission had observed that the disparity, 10 OA NO.267/2010 as far as appointment to various grades in the Centre are concerned, should not exceed 2 years between IAS and Organized Group 'A' Services. The matter relating to grant of Non-Functional Upgradation to officers of Organized Group A Services has further been examined in this Department and the following clarifications are issued :
Point of Doubt Clarification ..... .....
The term 'Batch' cannot have different meanings at different places.
The 'Batch' for direct recruit officers in the induction grade shall be the year following the year in which competitive exam was held. In subsequent grades the 'Batch' would remain the same provided the officer is not superseded due to any reason. In case an officer is superseded the officer would be considered along with the 'Batch' with which his seniority is fixed.
9. It has been further submitted by the Learned Counsel for the applicant that the authorities, by getting nomination paper, indirectly covered him under the old rules of 1972. The delay caused by the Respondent No.1 in issuing him the appointment letter after his recruitment in the year 2002 cannot and does not snatch away his right of being appointed and recruited in 2002.
10. I have heard learned counsel for the 11 OA NO.267/2010 Applicant and the Respondents at length and also perused the pleadings and documents annexed therewith.
11. From the terms and conditions as indicated in the offer of appointment dated 11th February, 2004 it appears that the Applicant would be on probation for a period of 2 years from the date of appointment which may be extended by the Competent Authority for unsatisfactory performance during the period of probation OR for failure to pass the departmental examination OR for non-completion of training OR for any other reasons to be recorded in writing. Failure to complete the period of probation to the satisfaction of the Competent Authority will render the Applicant liable to be discharged from service OR to be reverted to his parent department in case the Applicant has been allowed to hold a lien against a post in that department. Clause 2(viii) of the said offer of appointment stipulates that the appointment of the applicant will be governed by the relevant Rules and Orders issued from time to time. Clause 2(i), (ii), (iii) and (iv) of the offer 12 OA NO.267/2010 of appointment is set out herein below :
(i) The post is permanent but initial appointment will be on temporary basis.
Your claim for permanent absorption will be considered in accordance with rules in force.
(ii) You will be on probation for a period of two years from the date of your appointment which may be extended by the competent authority for unsatisfactory performance during the period of probation OR for failure to pass the departmental examination OR for non-completion of training OR for any other reasons to be recorded in writing. Failure to complete the period of probation to the satisfaction of the competent authority will render you liable to discharge from service OR to be reverted to your parent department in case you have been allowed to hold a lien against a post in that department.
(iii) Unless you have been so examined and found fit, you are required to undergo a medical examination by Civil Medical Board including fitness for field service liability. You will be required to pay prescribed fee to the medical Board at the time of Medical Examination and your appointment will not be effected until and unless you are declared medically fit. The date, time and exact place of medical examination will be communicated to you directly by the Medical Board Authorities. No travelling allowance will be admissible to you in respect of journeys performed in connection with Medical Examination.
(iv) The appointment may be terminated at any time on one month's notice given by the either side, viz. the appointing authority OR by you without assigning any reasons OR by reverting you to your parent department in case you are holding a lien. The appointing authority, however, reserves the right of terminating, however, reserves the right of terminating your service forthwith OR before the expiry of the stipulated period of notice by making payment to you, a sum equivalent to the pay 13 OA NO.267/2010 and unexpired portion thereof. Clause 6 stipulates that the validity of the offer of appointment was six moths from the date of the issue of the letter.
12. It appears from the records that the Applicant along with one Shri Pankaj Kumar Singh received the offer of appointment in 2004. The other 3 candidates participating in the same selection process received the offer of appointment in 2003, i.e., prior to the introduction of the new pension scheme. The Applicant thereafter joined his duty on 12.04.2004 and executed all the documents as per requirement of the service. He did not raise any protest or came before any Court of law at the relevant time challenging the delay in issuing his offer of appointment. However, it appears from records that he filed a representation on 30.08.2004 simply requesting the Director, Civilian Personnel, Ministry Defence (Navy), New Delhi, to consider his case and accommodate him in old pension scheme. It appears from the impugned letter dated 19th January, 2006 that the concerned authority recorded reasons for not extending the benefit of old Pension Scheme in the following manner :
14 OA NO.267/2010The issue of extending the old pension scheme to S/Shri Atul Pandey and Pankaj Kumar Singh both Asst. Managers of NAD Visakhapatnam has been examined with reference to relevant instructions and in consultation with Ministry of Defence.
The instructions issued on the subject provide that new pension scheme is required to be extended to all those Central Govt. employees who joined service on or after 01 January 2004. The cut-off date is with reference to date of joining and is not related to year of recruitment/examination.
13. The learned counsel for the applicant heavily relied on the O.M. dated 10.06.2010 of DOPT to establish that the term 'Batch' cannot have different meanings at different places but the said Office Memorandum was issued in connection with Non-Functional Upgradation for officers of Organized Group 'A' service. The term 'Batch' used in the said O.M. or the clarification made thereto in connection with upgradation does not have any relevance in respect to adjudication of the present dispute in controversy. The question here is whether a selectee of the year 2002 can claim the service benefit which was not available when he was actually appointed and joined the service in 2004?
14. It is well settled by various decisions of 15 OA NO.267/2010 the Hon'ble Supreme Court that appointment to a post is made by issuing a letter of appointment indicating the terms of the appointment and requesting the candidates concerned to signify his acceptance of the same. In the absence of any special statutory provision, etc., contract of service must be preceded by an offer and acceptance. The agreement in respect of appointment on and from a particular date would be binding on the parties. There cannot be any retrospective appointment in direct recruitment.
The service rules and regulations which were prevalent on the date of appointment of the applicant will govern his service under the respondent authorities. Although the Applicant has attempted to find fault in the new restructured defined Contribution Pension Scheme which is in force w.e.f. 01.01.2004, but the same is not under challenge in the instant O.A. There is no challenge towards the cut off date of the said pension scheme. The Applicant with his eyes and ears open accepted the date of appointment, way back in 2004, consequently accepted the prevailing rules and regulations 16 OA NO.267/2010 which would govern his service. The Applicant also accepted that w.e.f. 01.01.2004 new pension scheme will apply to new entrants to Central Government Service. He did not challenge the delay in appointment in any legal proceeding earlier. The same is also not the subject matter of challenge in this O.A. which has been filed in 2010. It appears from Annexure A-9, being the representation of the applicant dated 30.08.2004, he made the following request :
With due respect, I would like to draw your kind attention that I should have got offer of appointment in normal manner in June 2003 like our batchmates but due to unexpected administrative delay in issuing appointment letter to me I could join in year 2004, instead of year 2003.
I, therefore, request you to kindly consider my case sympathetically and accommodate me in old Pension Scheme (i.e. Defined Benefit Pension Scheme) like our batchmates of ESE 2001 so that Anomaly in same batch joining same government department may not take place. His next representation was dated 22.09.2008, i.e. after four years and last representation is dated 09.09.2009. He has challenged the letter dated 19.01.2006 in this O.A. which is the reply to his representation dated 30.08.2004
15. It has been held by the Hon'ble Supreme Court consistently that merely because a 17 OA NO.267/2010 candidate is eligible when the advertisement was issued or that the candidate's name is included in the select list, this does not confer any right on the candidate to be appointed but the appointment would take effect from the date of appointment and not from the date of passing the examination. The Hon'ble Apex Court has consistently held that even if a number of vacancies were notified for appointment and adequate number of candidates were found successful, they would not acquire any indefeasible right to be appointed against the existing vacancies.
16. The learned counsel for applicant has relied on the following judgments :
1.
Andhra Pradesh Public Service Commission Vs. Baloji Badhavath & Others [2009 (1) SCC (L&S) 999].
2. Shankarasan Dash Vs. Union of India [1991 (2) SC SLJ 5]
3. Himachal Road Transport Corporation Vs. Dinesh Kumar [1996 SCC (L&S) 1053]
4. Prem Kumar Verma & Anr. Vs. Union of India & Ors. [1998 (2) SC SLJ 1]
5. O.S. Singh & Anr. Vs. Union of India & Anr. [1996 SCC (L&S) 373]
6. Pilla Sitaram Patrudu & Others Vs. Union of India & Others [1996 SCC (L&S) 1086].
18 OA NO.267/20107. Mohd. Raisul Islam & others Vs. Gokul Mohan Hazarika & Others [2010 (2) SCC (L&S) 440]
8. State of Bihar & Ors. Vs. Mithilesh Kumar [2011 (1) AI SLJ 180].
9. Dr. P. N. Dubey & Others Vs. State of M.P. [1997 SCC (L&S) 826].
10. Mohd. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Others [2009 (2) SCC (L&S) 227].
11. Arjun Singh Rathore & Others Vs. B. N. Chaturvedi & Others [2008 (2) SCC (L&S) 387].
12. State of Punjab & others Vs. Amar Nath Goyal & Others [2005 SCC (L&S) 910]
13. Mani Ram Vs. State of Haryana & others [2005 SCC (L&S) 921].
17. The decision relied by the learned counsel for the Applicant in the case of Dalilah Sojah Vs. State of Kerala & Others [1999 L.A.B. I.C. 606] do not apply to the facts and circumstances of the instant case. The said judgment is clearly distinguishable. The Hon'ble High Court in this case did not disturb the appointment but observed that the Writ Petitioners who challenged the seniority and appointment of the respondent would rank senior to the respondent. The Hon'ble Apex Court held that the High Court, in our opinion, fell in error in observing that the appellant's name could not be 19 OA NO.267/2010 placed at Serial No. 1 in the second select list. What was in fact done was that the appellant was being appointed against the vacancy which had arisen on 6th October, 1972, when admittedly, the select list was still alive. We see no reasons, under these circumstances, when the appointment of the appellant has not been set aside, as to why she should be deprived of the seniority. The other decisions relied upon by the learned counsel for the applicant do not apply to the facts and circumstances of the instant case. The principle as enunciated in the judgments relied by the learned counsel for the applicant that same rules for recruitment will be applicable till the selection is completed or the rules of the game cannot be changed before the game is over, does not apply in this case. It is not disputed that change of criteria of selection or amendment of the rules in the midst of selection process is not permissible. But this principle applies to recruitment process or recruitment rules and not the service rules laying down the service conditions which govern an employee only 20 OA NO.267/2010 after he is appointed. The Hon'ble Apex court in no uncertain terms has held that an employee would be governed by the service rules which prevail on the date of his appointment and joining the service.
18. The Applicant has heavily relied on the decision of Hon'ble Supreme Court in the case of D.S. Nakara & Others Vs. Union of India & Others [1983 SCC (L&S) 145]. It has been held by Hon'ble Supreme Court in Nakara's case that specification of a cut-off date dividing the retirees into two classes will be violative of Articles 14 and 16(1) of the constitution if the division is of a Homogeneous class and without any discernible reason. The ratio of Nakara case, where the applicants are all retirees, has no manner of application in the instant case. The Applicant in the instant Original Application has not challenged the cut off date of the new pension scheme which is in vogue on and from 01.01.2004 and apply to all Central Government employees. The cut-off date of the earlier pension scheme also is not under challenge. That apart, the same is a matter 21 OA NO.267/2010 relating to the executive domain. It is fundamentally the reluctance of the Court to interfere with the policy matters of the Government.
19. It has been held by the Hon'ble Apex Court in the case of Union of India Vs. P.N. Menon [AIR 1994 SC 2221]. Not only in matters of revising the pensionary benefits, but even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis, has to be fixed for extending the benefits. This can be illustrated. The Government decides to revise the pay-scale of its employees and fixes the 1st day January of the next year for implementing the same or the 1st day of January of the last year. In either case, a big section of its employees are bound to miss the said revision of the scale of pay, having superannuated before that date. An employee, who has retired on 31st December of the year in question will miss that pay-scale only by a day, which may affect his pensionary benefits throughout his life. No scheme can be held to be foolproof, so as to cover and keep in view all persons who were at 22 OA NO.267/2010 one time in active service.
20. The applicant has never challenged the delay in issuing the offer of appointment. His first representation is of the year 2004 whereby he simply requested the authorities to cover him under the old Pension Scheme of 1972. He made his next representation in this regard in the year 2008. It is evident from the chart given at Para 4.6 of the O.A. that the applicant had not been singled out in respect of issuance of the offer of appointment in February, 2004. One Mr. Pankaj Kumar Singh was also given the offer of appointment in March, 2004. Had the applicant approached a competent Court of Law challenging denial of the offer of appointment along with other similarly situated candidates who got their appointment in 2003 at the relevant time, and had the Court of Law granted the relief to give retrospective effect to his appointment from the date others were appointed, he could have claimed the benefit of old Pension Scheme which was in force till 31.12.2003. Having not done so, it is not open to him to claim any relief to the extent that he should be covered 23 OA NO.267/2010 under the Old Pension Scheme which was not available at the time of his appointment. It is also surprising that he did not even challenge the communication made to him dated 19.01.2006 which is only impugned in this O.A. in the year 2010. The plea taken by the applicant with regard to question of limitation is that his representations dated 22.09.2008 and 09.09.2009 are pending with the DOPT and he has to compulsorily contribute every month from his salary bill certain amount towards his pension in terms of new restructured defined Contribution Pension Scheme, 2004.
21. Having regard to the aforesaid discussions, I find no merit in this O.A. Accordingly, the O.A. is dismissed. No order as to costs.
(Smt. Chameli Majumdar) Member (J) Mg/os*