Central Administrative Tribunal - Delhi
Ram Prasad Gupta vs Union Of India (Through The Secretary To ... on 18 November, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1799/2010 Thursday, this the 18th day of November 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Ram Prasad Gupta s/o late Shri Daulat Ram Gupta H.No.8/5, Shakti Nagar, Gwalior Road Agra (UP) ..Applicant (By Advocate: Shri D N Sharma) Versus 1. Union of India (through the Secretary to the Govt. of India) Ministry of Human Resources Development Kendriya Vidyalaya Sangathan Deptt. Shastri Bhawan, New Delhi 2. The Commissioner Kendriya Vidyalaya Sangathan, 18, Institutional Area Shaheed Jeet Singh Marg, New Delhi-16 3. The Assistant Commissioner Kendriya Vidyalaya Sangathan (Regional Office) Lucknow Region, Section J, Aliganj Lucknow (UP) 4. The Principal Kendriya Vidyalaya No.1 Air Force Station, Agra (UP) ..Respondents (By Advocate: Shri U N Singh) O R D E R (ORAL)
Shri Shanker Raju:
Applicant, who retired on superannuation on 31.7.1997, is aggrieved by an order passed by the respondents dated 3.11.2009 whereby his services from 15.12.1955 to 28.8.1972 with Madhya Pradesh Government have not been counted for pensionary benefits on the ground that he had firstly failed to exercise the option and secondly the main condition, i.e., one time liability on pro rata pension as per OM dated 29.8.1984, has not been discharged by the applicant.
2. Learned counsel for applicant draws our attention on the issue of pro rata pension, etc. by relying upon the OM issued by the G.I., Dept. of Pen. & Pen. Welfare, dated 25.10.1996 wherein it has been stipulated that These provisions do not exempt any State Government from the applicability of the reciprocal arrangement which dispenses with sharing of pension liability. As such, the aforesaid ground is not an impediment to count the past service for grant of pensionary benefits to the applicant.
3. Insofar as non-exercise of option is concerned, it is stated by learned counsel that as soon as the applicant has joined the service, he has made an application to the respondents on 6.11.1972 requesting to count his service under Kendriya Vidhayala Sangathan (KVS) for the purpose of pension. It is also stated that in one of the representations made in 1978 and 1979, applicant has apprised to the respondents to count the erstwhile service with the requisite particulars, which has been entered by the respondents in his service book as reflected by annexing the copy of service book. It clearly indicates that the option having been exercised by the applicant has not been considered as per Rule 18 of CCS (Pension) Rules, 1972.
4. Learned counsel would lastly contend that insofar as the circular relied upon by the respondents dated 22.10.1990 is concerned, the same would have application only when the persons, who have failed to exercise the option, have been given an opportunity to exercise the option for the purpose of counting of service. According to him, this has no relevance in the present case, as the applicant has already exercised the option by supplying the requisite particulars to the respondents as an entry in the service book.
5. On the other hand, learned counsel for respondents vehemently stated that the applicant has taken an afterthought on the issue of submission of option, as the option was to be exercised on an addressed letter to the Commissioner. As the letter in the instant case is written to the Principal, it is not the valid communication and it is denied for want of acknowledgement with a specific stand that the applicant has never exercised the option for counting the past service.
6. Learned counsel has also relied upon the OM of 1984 ibid to contend that once the liability has not been discharged by the State Government, no service could be counted in respect of the applicant.
7. Learned counsel has further stated that the applicant has earlier gone to the High Court of Judicature at Allahabad by filing Civil Misc. Writ Petition No.41744 of 1997, which was disposed of vide order dated 3.9.2003 on liberty to file the claim before the Tribunal. Applicant thereafter filed OA-1200/2003 before the Allahabad Bench of the Tribunal wherein vide order dated 27.8.2009 applicant was directed to seek redressal through representation. As such, the claim of the applicant is liable to be rejected.
8. We have carefully considered the rival contentions of the parties and perused the records.
9. In the matter of pension, which is not a bounty but a fundamental right guaranteed to the government servant as ruled by the Apex Court in D.S. Nakara & others v. Union of India, 1983 SCC (L&S) 145, there is an apt methodology available under Rule 18 of CCS (Pension) Rules, 1972, which undisputedly has been adopted by the KVS to allow its employees the pensionary as well as post-retiral benefits.
10. Accordingly, as per Rule 18 (2) (a) of the CCS (Pension) Rules, it has been obligated upon the appointing authority in case of those, who are going to be appointed on substantive basis either from the State Government or from autonomous body as a requirement in writing by the appointing authority to the government servant to exercise the option under sub-rule (2) within the period of three months whether the erstwhile service would be counted to the pensionary benefits or not.
11. In the above view of the matter, we do not find any discharge of obligation by the respondents by extending the option to the applicant in 1972 when he had joined the KVS from the State Government. However, assuming the respondents have extended the option, though it is not reflected from the records as a fall out entry of erstwhile service in the service book, i.e., personal file, which is appended with this OA, it clearly shows that such a requirement having been followed by the respondents, the entry in the service records is a fact of erstwhile service and exercise of option regarding counting of pensionary benefits, which now cannot be questioned by the respondents, as they are estopped from questioning the same, as the entry of his erstwhile service in the record is indicative of the fact that it has been made for the purpose of pensionary benefits.
12. The fact of erstwhile service cannot be incorporated in the service book, except for the purpose of counting of service for pensionary benefits. As such, the circular of 1990 would have applied only to those who have earlier not exercised the option.
13. As regards application of the applicant sent to the respondents in 1972, it is stated by the respondents that nothing of sort is on record, yet we find that this is by way of representation of the applicant filed in May 1999 that the Principal in the service record at page 33 has signed on the service particulars of the applicant, which contained the details of his erstwhile service. As such, there has to be deemed option now in favour of the applicant for counting of erstwhile service as a qualifying service for the purpose of pensionary benefits.
14. Regarding pro rata pension, etc., once this has been dispensed with by the applicant vide his letter dated 25.10.1996, the same would have application in case of the applicant, who retired in superannuation on 31.7.1997. In such an event, it is the reciprocity by the State Government and the Central Government that the matter be sorted out between themselves but insisting on liability to be discharged as a condition precedent for counting past service cannot be countenanced in law.
15. One of the contentions raised by the learned counsel for respondents is that in the representation preferred by the applicant, there is nothing, which could be implied as an exercise of option by the applicant. However, on perusal of representation dated 6.1.2009 at page 45 of the paper book in paragraph 5, which we have referred to in the preceding paragraphs as well, it is seen that applicant having written that the particulars had already been made available on the basis of which relevant entry of previous service was also made, is a fact acknowledging the exercise of option by the applicant, which now cannot be denied by the respondents.
15. Resultantly, OA is allowed. Impugned order is set aside. Respondents are directed to count the erstwhile service rendered by the applicant with Madhya Pradesh Government from 15.12.1955 to 28.8.1972 and re-calculate the pensionary benefits with arrears from the date the applicant has retired from service on superannuation. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/