Gujarat High Court
For Approval And Signature vs Page on 28 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1706/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1706 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1710 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1711 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1712 of 2014
With
SPECIAL CIVIL APPLICATION NO. 1713 of 2014
With
SPECIAL CIVIL APPLICATION NO. 5346 of 2014
With
SPECIAL CIVIL APPLICATION NO. 5506 of 2014
With
SPECIAL CIVIL APPLICATION NO. 8090 of 2014
With
SPECIAL CIVIL APPLICATION NO. 8286 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
AHMEDABAD MUNICIPAL TRANSPORT - SERVICE....Petitioner(s)
Versus
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RAHIMBHAI MURADBHAI & 1....Respondent(s)
Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
MR YOGEN N PANDYA, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 28/04/2017
CAV JUDGMENT
In this group of 9 petitions, Ahmedabad Municipal Transport Services (hereinafter referred to as 'the petitioner AMTS') has challenged the award dated 7.10.2013 passed by the learned Industrial Tribunal at Ahmedabad in Reference (IT) No.140 of 2011 whereby the learned Tribunal held that the claimants who accepted Voluntary Retirement under the Voluntary Retirement Scheme (hereinafter referred to as 'VRS') are entitled and eligible for pension. Having reached to such conclusion, the learned Tribunal directed the petitioner AMTS to pay pension by taking into account entire period of their service with the corporation. The petitioner AMTS is aggrieved by the said direction. Hence this group of petitions.
2. So far as factual background is concerned, it has emerged that:-
Page 2 HC-NIC Page 2 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 2.1 The respondents (claimants) herein were selected and engaged as drivers, conductors and workshop (bodysmith) and they continuously worked as such till the date when they tendered applications for voluntary retirement in response to the Scheme (Voluntary Retirement Scheme) introduced by the petitioner AMTS whereby the petitioner AMTS invited applications for voluntary retirement and offered certain benefits in terms of said scheme. The details related to their service history are compiled (from the facts stated by claimants and the petitioner AMTS) in following statement:-
Sr. Case No. Joining Date when Date of Total Period No. Date as taken on applicati Daily Wage Acting on under Driver Service. VRS.
1 1706 of 15.10.1981 1.1.1986 Between Oct.1981 to
2014 16.12.200 Dec.2003= 22
3 and years
31.12.200
3
2 1710 of 4.3.1982 1.11.1986 -do- March-82 to
2014 Dec.2003 =
21 years
3 1711 of 20.3.1975 1.11.1980 -do- Oct.1975 to
2014 Dec.2003 =
28 years
4 1712 of 14.10.1975 1.3.1985 -do- Oct.1975 to
2014 Dec.2003 =
28 years
5 1713 of 14.10.1975 1.1.1989 -do- Oct.1975 to
2014 Dec.2003 =
28 years
6 5346 of 1.11.1983 1.11.1986 -do- Nov.1983 to
2014 Dec.2003 =
20 years
7 5506 of 28.1.1981 1.11.1985 -do- Jan.1981 to
2014 Dec.2003 =
22 years
8 8090 of 10.5.1978 1.1.1989 -do- May-1978 to
2014 Dec.2003 =
25 years
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9 8283 of 1.11.1983 1.10.1988 -do- Nov.1983 to
2014 Dec.2003 =
20 years
2.2 In 1984 the petitioner AMTS introduced
pension scheme for its employees. The pension
scheme was brought in force w.e.f. 1.1.1983. On the relevant date, i.e. on 1.1.1983 also the claimants were in service with the petitioner AMTS. Undisputedly, during the tenure of their service with the petitioner AMTS the petitioners were members of said pension scheme.
2.3 Subsequently, vide Circular No.18 dated 16.12.2003 the petitioner AMTS introduced VRS whereby the petitioner AMTS invited applications for voluntary retirement. The last date for submission of application was 31.12.2003. The terms and conditions applicable to the said VRS were prescribed by virtue of Annexure-A to the Circular No.18 of 16.12.2003.
2.4 The claimants opted for voluntary retirement and they availed the VRS in accordance with its terms and conditions. the petitioner AMTS accepted the applications by the claimants.
Thereafter the petitioner AMTS paid certain amounts to the claimants which, according to the petitioner AMTS were payable under the VRS.
Page 4 HC-NIC Page 4 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 2.5 After the petitioner AMTS paid the amounts to the claimants (which according to it were payable in accordance with the terms of the VRS), the claimants realized that they are not considered eligible for pension. Therefore, they demanded monthly pension on the ground that in view of the terms of VRS, they are eligible and entitled for pension.
2.6 the petitioner AMTS did not accept the said demand and therefore the industrial dispute arose between the parties.
2.7 Appropriate government referred the dispute for adjudication to learned Tribunal where the dispute / reference was registered as Reference (IT) No. 140 of 2011.
2.8 In their statement of claim the claimants narrated that they had completed 20 years of service with the petitioner AMTS at the time when the petitioner AMTS offered VRS / they accepted VRS. They also claimed that though their service qualified for pension, the petitioner AMTS arbitrarily considered them ineligible for pension and that the said decision is unjustified and the petitioner AMTS should be directed to cancel its decision and to pay pension in accordance with the terms of VRS.
Page 5 HC-NIC Page 5 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 2.9 The petitioner AMTS opposed the demand for pension by the claimants on the strength of provision under Rule 25 of GCS (Pension) Rules.
2.10 Learned Tribunal considered rival contentions and the provision on which the petitioner AMTS placed reliance i.e. regulation 25 of GCSR Pension Rules. After taking into account said provision and rival contentions learned Tribunal reached to the conclusion that the regulation 25 does not render the claimants disentitle for pension. Learned tribunal consequently passed the award dated 7.10.2013 which is impugned in this petition.
3. In this backdrop, Mr. Tanna, learned Senior Counsel with Mr. Munshaw, learned advocate for the Corporation submitted that the learned tribunal committed error in construing said regulation 25 and misconstrued the provision under Sub-clause (a) to Sub-clause(h) of Clause
(i) of said regulation 25 which prescribe, inter alia, that the service rendered during the period when claimants were paid on daily wage basis on daily wage cannot be considered / included at the time of calculating / determining pensionable service. He further submitted that The said provision is not challenged by the claimants on Page 6 HC-NIC Page 6 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT any ground including the ground that the said provision is arbitrary or unjust or discriminatory or ultra vires the Pension Rules or Service Regulations and that, therefore, without challenging the vires or legality of regulation 25 the claimants cannot claim that the service rendered on daily wage establishment should be taken into account. He submitted that the demand of the claimants and their grievance must be examined within four corners of the said Rule 25 and that unless the regulation 25 is construed to mean that the service on daily wage bases also should be included in pensionable service, the claimants would not be entitled for pension and the corporation has not committed any error in rejecting their claim for pension. He further submitted that according to paragraph No. 3 of VRS offered by the petitioner AMTS, the employees i.e. those who did not qualify for and were not eligible for pension at the time when they opted for voluntary retirement under the VRS would be entitled for compensation at prescribed rate and in present case all claimants have been paid compensation in accordance with clause-3 of VRS. According to learned Counsel for the petitioner, the order passed by the learned tribunal deserves to be set aside. Mr.Tanna, learned senior counsel then contended that the applicable Regulations prescribe specific rule Page 7 HC-NIC Page 7 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT with regard to qualifying service.
Another objection which is raised against the demand by the claimants in light of gap of 7 years after which the claimants raised the demand. It is contended that the claimants opted for VRS in 2004, whereas the dispute was raised as late as in 2011. According to the petitioner corporation, the said gap demonstrates and establishes that the claimants raised the demand only as an afterthought and with an intention to grab something more than what is granted to them under the Scheme. The petitioner AMTS has opposed the demand by the claimants also on the ground that after having accepted the lump sum compensation, the claimants are not justified in raising demand for pension and such claim should not be entertained.
According to learned Senior Counsel for the petitioner AMTS, the pension scheme specifically provides that provision of GCS (Pension) Rules will be applicable to the pension scheme of the petitioner AMTS. So as to support the said submission, learned Senior Counsel for the petitioner AMTS relied on various circulars, office orders as well as resolutions under which the pension scheme came to be introduced and applied for the employees of the petitioner AMTS. He also placed reliance on regulation No.14.9 as well as Rules under Chapter 9 [i.e. Rules 9.1 to Page 8 HC-NIC Page 8 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 9.4 of GCS (Pension) Rules] of the service regulations of the petitioner AMTS.
On the strength of the said Rules 9.1 to 9.4 and regulation 14.9 as well as the provisions under the circular / resolution which introduced the pension scheme for employees of the petitioner AMTS, learned Senior Counsel for the petitioner AMTS would contend that regulation 25 of GCS (Pension) Rules shall, therefore, be attracted and applicable in respect of pension scheme of the petitioner AMTS and consequently, the payment of pension to employees of the petitioner AMTS would be governed in light of and in accordance with the said regulation 25 of GCS (Pension) Rules. According to the petitioner AMTS, impugned award is passed without considering these aspects and that therefore, the award deserves to be set aside.
3.1 Per contra, Mr. Pandya, learned advocate for the original claimants submitted that though the claimants were initially engaged on daily wage basis, the corporation cannot ignore the fact that their recruitment/ appointments were not illegal, not even irregular, inasmuch as all petitioners were selected and appointed after they passed through selection and recruitment process, including interview. It is claimed that they had submitted applications and they passed Page 9 HC-NIC Page 9 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT through selection process and they were initially engaged - and continued for some time - on daily wage basis but subsequently their services were converted into "acting service" and that therefore, the claim of the petitioner AMTS that the claimants are not entitled for pension as they were engaged on daily wage establishment is contrary to the provisions under VRS as well as pension rules and service regulations. He submitted that the learned tribunal has not committed any error in construing and applying regulation 25 of GCS (Pension) Rules. He also submitted that the learned tribunal has taken into account the fact that the claimants were employed in substantive capacity and they held the post, where they were appointed, in "substantive capacity". The claimants would also contend that entire tenure of their service should be taken into consideration for the purpose of determining eligibility for pension under the VRS. Learned Counsel for the claimants submitted that at the time when the claimants accepted the VRS, they had completed service of 20 years and that from initial stage of their appointment, they were members of G.P.F. and that therefore, the petitioner Corporation is neither right nor justified in contending that the claimants had not completed pensionable service, at the time when they completed VRS.
Page 10 HC-NIC Page 10 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT Learned Counsel for the claimants submitted that the claimants were engaged after interview, i.e. after following procedure for selection and their appointment is not "backdoor entry" and that therefore also, the petitioner is not justified in treating the case of the claimants on par with irregular appointment of the persons and/or the persons whose appointments are a result of backdoor entry. Learned Counsel for the claimant also contended that the claimants had worked for more than 240 days in every year during tenure of their service and that therefore also, there is no justification in denying benefit of pension to the claimants.
4. I have considered rival submissions and material available on record as well as impugned award.
5. At the outset, it would be appropriate to take into account certain provisions under GCS (Pension) Rules and the Service Regulations of the petitioner AMTS as well as the pension scheme and the VRS of the petitioner AMTS.
The Provision:-
5.1 So far as Gujarat Civil Service (Pension) Rules, 2002 are concerned,
(a) Rule 9(17) of GCS (Pension) Rules explains Page 11 HC-NIC Page 11 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT which date will be considered as the date of commencement of service and prescribes, inter alia, that:-
"(17) "Date of first appointment" means the date on which the Government employee assumes the duties of his first post in Government service, or, if this be earlier, the date of his assumption of any duty which is treated as service counting for pension."
(b) The term "pension" is defined under Rule 9(55) which reads thus:-
"(55) "Pension" means any class of service pension including compensation pension referred to in rule 44 of the Gujarat Civil Services (Pension) Rules, 2002 and gratuity but does not include temporary increase/dearness relief, granted by Government to a pensioner as compensation for higher cost of living."
(c) Under GCS (Pension) Rules, Rule 44(2) makes provision for retiring pension and prescribes that:-
"44(2)Retiring pension, means a pension granted to a Government employee who retires voluntarily on completion of twenty / twenty- five/thirty-five/thirty years' qualifying service or who is required by the appointing authority to retire in the public interest, but before attaining the age of superannuation."
So far as the matters related to pension are concerned, the said Rules are applicable to government employees. The petitioner AMTS claims that by virtue of its service regulations said Rules are applicable to its employees. However, the petitioner AMTS has also introduced its own separate and independent pension scheme which contains its own terms and conditions and said pension scheme and the terms thereunder are - in several respects - different from the provision under GCS (Pension) Rules. Rule 44 and 48 make Page 12 HC-NIC Page 12 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT provision for "retirement pension" and for "voluntary retirement" respectively.
5.2 Service Regulations of the petitioner AMTS:-
(a) The petitioner - the petitioner AMTS has framed service guidelines which have been brought into force vide Resolution No.315 dated 27.08.1993. The service regulations prescribe service conditions for the employees of the petitioner AMTS. The service of employees of the petitioner AMTS and matters related to their service are governed by said service Regulations.
(b) It is not in dispute that the said service Regulations were applicable to the claimants and their services were governed by said Regulations. The Clause 1.3 prescribe its applicability and reads thus:-
"1.3 Applicability These Service Regulations shall apply to all members of the staff, who are in fulltime employment of the Ahmedabad Municipal Transport Service and shall not apply to those who are employed on part-time basis. Members of staff, whose daily working hours are less than five shall be deemed to have been employed on part-time basis.
These Service Regulations shall also not apply to Apprentices, Probationary Engineers and such other persons appointed for training or on contract basis, unless specifically applied."
It is not the case of the petitioner AMTS that present respondents, while they were in service with the petitioner AMTS, were not Page 13 HC-NIC Page 13 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT governed by these regulations. It is not in dispute that the claimants were in fulltime employment with the petitioner AMTS and/or that they were not engaged/appointed as "apprentice" and they were not appointed or engaged for training or on contract basis. That is not the case even of the petitioner AMTS.
(c) Regulation Nos.2.10 and 2.11 classify the employees of the petitioner AMTS into 5 categories namely viz permanent, probation, temporary, badli and acting. The said expressions are dependent on Regulation No.2.10 and 2.11 which reads thus :-
"2.10 MEMBERS OF STAFF CLASSIFIED AS (1) "Permanent" means a member of staff who has been engaged on a permanent basis and includes any person who has been taken on the permanent establishment after satisfactorily completing a Probationary period as applicable to him.
(2) "......."
(3) "Temporary" means a member of staff whose services have been engaged for a limited period in connection with work, which is essentially of a temporary nature or who is employed temporarily as an additional staff in connection with temporary increase in work of a permanent nature and includes a Substitute who is appointed in the post of a permanent member of staff or a Probationer who is temporarily absent.
(4) "........."
2.11 ACTING means the performance of duties on a temporary basis, by a member of staff, in a post to which another members holds a lien or which is vacant and includes an acting appointment in place of a member of staff on deputation or training or instruction or for Undertaking Business."
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(d) Clause 9.2 under Chapter IX reads thus :-
"9.2. Subject to Regulation No.9.3 below All members of Staff, who have opted to join the Pension Scheme (Effective from 1.1.1983) and who have joined A.M.T.S. after the Pension Scheme came in operation shall be governed by General Provident Fund Rules applicable to the Gujarat State Government Employees."
(e) The Chapter related to gratuity and pension are found in Chapter XIV of the Service Regulations. The relevant provisions read thus :-
"14.9.1. This Pension Scheme is made applicable to AMTS employees w.e.f. 1-1-1983 and shall be compulsory for employees who join AMTS service from 1-1-83 or thereafter.
14.9.2. All the Pension Rules applicable to the Gujarat State Government employees shall be applicable in case of AMTS employees from time to time.
14.9.3. For employees under the Pension Scheme. General P.F. Rules for the Gujarat State Government employees shall be applicable and rules regarding contribution and rate of interest prevailing from time to time shall be applicable."
(g) Undisputedly, the claimants were member of the pension scheme of the petitioner AMTS as well as G.P.F. 5.3 Pension Scheme/Pension Rules of the petitioner AMTS:-
The petitioner AMTS introduced its pension scheme in 1983. The relevant provision under the pension scheme of the petitioner AMTS reads thus:-
"Commencement of the pension scheme:- It is decided to implement this pension scheme from 01/01/1983.
Entitlement for pension :-
Page 15 HC-NIC Page 15 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT The service discharged on the regular establishment from the date of joining is considered pensionable.
Under the revised pension rules, the pensionable service is depending upon the years of service rendered by the employee. For this purpose, service tenure for less than six months is not considered. But the service tenure of six months and above is treated as a complete year.
Example :-
[1] 24 years - 2 months - 8 days is treated as 24 years, whereas, [2] 27 years - 6 months - 1 day is treated as 28 years.
All types of temporary or permanent services in any cadre whether discharged continuously or with fractions on regular establishment is considered pensionable."
(a) The pension Scheme of the petitioner AMTS contains specific provision for "Entitlement for Pension" and for "qualifying years for pension". The paragraph No.2 of the VRS specifically makes reference of pension Scheme of the petitioner AMTS. Therefore, claimants' entitlement for pension should be decided in light of the provision under the pension Scheme of the petitioner AMTS. According to the provision under pension Scheme of the petitioner AMTS all types of services on regular establishment is considered entitled for pension. At the same time, it is undisputed, rather it is clarified and admitted by the petitioner AMTS, that the service rendered in the category of "acting service" is also eligible for pension and such service is considered pensionable service or qualifying service. So far as the qualifying Page 16 HC-NIC Page 16 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT service for pension is concerned, the pension scheme of the petitioner AMTS provide, inter alia, that:-
Qualifying years for pension :-
The employees of the Class-I, II and III get retired at the age of 58. Whereas, the retirement age for the Class-IV employees is 60.
[1] At the time of retirement, the employee who has rendered the pensionable service for less than five years is not entitled to get the pension.
[2] At the time of retirement, the employee who has rendered the service for five years and above but less than ten years is not entitled for pension.
[3] At the time of retirement, the employee who has rendered the pensionable service for ten years and above will receive monthly pension during his life-time.
[4] The employee who has rendered the pensionable service for less than 33 years is entitled for the pension in proportion to his pensionable service. As an example, if the employee's pensionable pay is Rs.1000/-, he will obtain pension of Rs.500/- after the completion of the service of 33 years."
(b) According to the pension scheme, the employees who have completed pensionable service of less than 5 or less than 10 years at the relevant time are not considered entitled for pension.
(c) However, according to Clause 3 of the Scheme, "10 years of pensionable service" is considered eligible for pension during their lifetime.
(d) The said provision is relevant, rather crucial, for the controversy on hand. According to the Pension Scheme of the petitioner AMTS the Page 17 HC-NIC Page 17 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT employees of the petitioner AMTS would be eligible for pension if at the time of retirement he has completed 10 years of pensionable service.
(e) The said paragraph/clause No.3 under pension Scheme of the petitioner AMTS marks departure from and it is at variance vis-a-vis the provision under GCS (Pension) Rules, more particularly Rule 44(2) and/or Rule 48(1) of GCS (Pension) Rules [which require 20 years of service for being eligible for pension]. This being a specific and special provision under the pension Scheme of the petitioner AMTS, it would prevail over provision under GCS (Pension) Rules, so far as employees of the petitioner AMTS are concerned.
(f) Despite the fact that the pension scheme of the petitioner AMTS has special and specific provision about "entitlement for pension" and "qualifying years for pension", the petitioner AMTS heavily relied on Rule 25 of GCS (Pension) Rules and on the strength of the said provision, the petitioner AMTS contends that the service rendered by the claimant during the period when they were paid on daily wage basis has to be excluded and that part of their service cannot be taken into account while determining the pensionable service/qualifying service. The Page 18 HC-NIC Page 18 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT petitioner AMTS has placed heavy reliance on Rule 25 of GCS (Pension) Rules. Therefore, it would be appropriate at this stage to take into account said Rule 25 of GCS (Pension) Rules which reads thus:-
5.4 About Rule 25 of GCS (Pension) Rules:-
"25. Qualifying service:
Subject to the provisions of these rules, qualifying of a Government employee, means and includes that-
(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include-
(a) service in non-pensionable establishment,
(b) service paid from continences,
(c) service rendered in daily rated establishment,
(d) actual periods of break in service if any, between spell of service.
(e) service prior to resignation, removal or dismissal,
(f) service as an apprentice,
(g) service on fixed pay basis, and
(h) service on contract basis"
(ii) all service rendered in work charged establishment provided that the total service put in, as such is five years or more.
(iii) to (x) xxx xxx."
(a) On reading said Rule 25 it comes out that according to the said provision, all service rendered on regular establishment including the service on probation and temporary service and even interrupted service are included within the purview of "qualifying service". According to this provision, the service rendered even on work charge basis and the basis/categories under Rule 25(iii) to is also to be included in qualifying service.
(b) It is pertinent that the categories of Page 19 HC-NIC Page 19 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT service which have to be excluded from the purview of "pensionable service" are specifically and expressly prescribed under clause (a) to (h) of sub-rule (1) of Rule 25 and which have to be included within the purview are specifically mentioned under sub-rule (i) sub-rule (ii) of sub-rule (x) [except clauses (a) to (h) of sub- rule(i)] of Rule 25 of GCS (Pension) Rules. Differently put, the said Rule 25 prescribes the service which would be included within the scope of "qualifying service" and it also separately and specifically enumerates the type or category of service - employment which would stand excluded from the scope of "qualifying service"
under Rule 25.
(c) The said Rule 25 is, thus, exhaustive provision. Consequently, only those categories of service - employment which are expressly excluded i.e. services enumerated under clause (a) to (h) will stand excluded. The service or the category / type of service / employment which is not expressly and specifically excluded can not be disregarded.
(d) Further, the said provision does not provide or does not contemplate that even that part of the service which is rendered after the service is converted to regular establishment (and Page 20 HC-NIC Page 20 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT thereby comes into the category of pensionable/qualifying service) should also be disregarded merely on the ground that for some period at initial stage the employee worked (or was paid) on daily wage basis.
(e) The said Rule 25 cannot be considered or applied to the employees of the petitioner AMTS / to the pension scheme of the petitioner AMTS in isolation without having regard to the provisions under the VRS of the petitioner AMTS and the pension Scheme of the petitioner AMTS.
5.5 In this backdrop, it is necessary, at this stage, to take into account relevant provision under the VRS of the petitioner AMTS. About the VRS of AMTS :-
The VRS provides, inter alia, that:-
"Rules of Voluntary Retirement Scheme Upon approval of voluntary retirement, the employees willing to seek voluntary retirement shall be immediately paid the outstanding amount of provident fund, gratuity and leave encashment and other benefits as per rules admissible to them.
(1) All the employees retiring after 1/1/2005 are entitled to join this Scheme. (This Scheme shall not be applicable to the employee retiring between 31/12/2003 to 31/12/2004.) (2) The employee who is a member of Pension Scheme and whose service is pensionable will be paid amount of pension as per Pension Rules.
(3) The employee whose service is not pensionable, if such employee seeks voluntary retirement, such employee will be paid compensation for the years of his service as follows.
Page 21 HC-NIC Page 21 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT (A) In cases, wherein service tenure is 10 years or less, salary of 10 days for each year of service shall be paid as additional compensation. (B) In cases, wherein service tenure is more than 10 years and service is not found pensionable, salary of 20 days of each year of service shall be paid as additional compensation.
(C) Calculation of compensation:-
(i) Pay = Current basic pay plus amount of dearness allowance.
(ii) Years of service will be calculated from the date of continuous (active) service.
(iii) Apart from full year of service, if the service duration is six months or more, it shall be considered as a full year. Whereas, in the case of less than six months service, that duration of service will not be considered.
(iv) Leave without pay (LWP), period of absence from the duty will not be taken into consideration in calculation of compensation.
(D) The employee whose service is not found pensionable and who is willing to take voluntary retirement, must fill up the "consent letter" along with application.
The employee who is entitled to pension will not be given benefit of compensation.
(4) This Scheme shall not be applicable to the employees who have taken benefit of the Voluntary Retirement Scheme previously.
(5) to (8) xx xxx"
The clause (1) of VRS marks departure from general provision under GCS (Pension) Rules - particularly Rule 48 of GCS (Pension) Rules and clause/paragraph No.2 incorporate by Reference/ bring in picture the Pension Scheme of the petitioner AMTS.
5.6 The Object of the VRS and the Purpose for introducing the VRS:-
(a) It is not in dispute that the petitioner AMTS wanted to shed-off extra weight on its wage bill Page 22 HC-NIC Page 22 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT by reducing staff strength and for that purpose, the petitioner AMTS decided to retire substantial number of its employees. For the said purpose and with the said aim, the petitioner AMTS introduced the VRS. So as to attract and motivate more number of employees to opt for voluntary retirement, the petitioner AMTS offered some benefits and certain relaxations in applicable conditions with reference to some benefits. The said special relaxation in the VRS with reference to various service condition/various benefits tantamount to assurance or promise by the petitioner AMTS.
(b) The VRS framed and offered by the petitioner AMTS has its own and separate terms and conditions. The (i) invitation for the application for voluntary retirement from the employees; and (ii) the application for (voluntary retirement) tendered by the employee under the VRS; and (iii) its acceptance by the petitioner AMTS constitute a special contract between the employer and the employee (who opts for voluntary retirement under such scheme).
Thus, in present case, the voluntary retirement by present respondents (under the VRS of the petitioner AMTS) is special contract between the petitioner AMTS and present respondents who opted for voluntary retirement under the VRS. Further, Page 23 HC-NIC Page 23 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT it is also relevant to note that the said contract is separate and distinct from the service regulations as well contract of employment. So far as the employees of the petitioner AMTS are concerned, the terms and conditions of the VRS of the petitioner AMTS would, therefore, prevail over other terms and conditions including the Pension Rules applicable to government employees i.e. GCS (Pension) Rules unless the VRS itself provides otherwise.
(c) According to clause 2 of the VRS, the employees of the petitioner AMTS who fulfill the eligibility criteria prescribed under the VRS and whose application for voluntary retirement under the scheme is accepted by the petitioner AMTS would be entitled for payment of benefits prescribed under the VRS and those employees/optees who were members of pension scheme of the petitioner AMTS would be paid pension in accordance with terms of pension Scheme/Rules, over and above P.F., Gratuity, leave encashment and other admissible/payable benefits. The said VRS further prescribe and provide that the employees whose service is not pensionable and who opt for VRS, then, such employees (i.e. who have opted for VRS though their service is not pensionable) will be Page 24 HC-NIC Page 24 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT entitled for compensation in accordance with sub- clause (a), (b) and (c) of clause-3 of VRS.
(d) On the other hand, the pension scheme of the petitioner AMTS, more particularly clause 3 of pension scheme provide that if an employee has completed pensionable service of not less than 10 years such employee will be entitled for monthly pension during his life time.
(e) Certain other clarifications/conditions are also incorporated in said VRS, e.g. employees who had availed benefit under earlier / previous VRS will not be entitled to opt for VRS under present scheme and that those employees against whom any departmental / domestic proceedings are pending, will also not be entitled for VRS, however, such other terms are not relevant for the purpose on hand.
5.7 About the nature and status of the appointments and service of claimants:-
(a) According to the claimants, they were selected, recruited and appointed on the post of Driver and right from the "first date of (their) appointment" they were, actually and in effect, engaged in accordance with procedure prescribed under service regulation for Selection and Recruitment and their appointments have not been Page 25 HC-NIC Page 25 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT made irregularly and/or by way of back door entry.
(b) It is not in dispute that the claimants had submitted applications in response to advertisement inviting applications. Their applications were considered. They were called for written test and interview and they passed through the said process. The claimants, undisputedly, fulfilled the eligibility criteria of the post (Driver) where they were selected and appointed viz. age limit, requisite educational qualification, etc. It is not in dispute that the claimants were selected and appointed after they passed through regular selection process. It is also not in dispute that even for the period during which they were made to work on "daily wage basis" they were members of provident fund (GPF). It has also emerged that the source of appointment (applications invited by advertisement) and the process of selection and the recruitment procedure for appointment were in accordance with Rules of the petitioner AMTS. It has also emerged that the claimants worked fulltime and the nature of their work and duty are also of permanent nature. The claimants were even bound by the service and discipline Rules of the petitioner AMTS. The said assertions are not denied by the petitioner AMTS. It is also not in Page 26 HC-NIC Page 26 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT dispute that right from first date of their appointment they were also member of the pension scheme of the petitioner AMTS. Actually, except the nomenclature and mode of payment of salary, all characteristics and factors relevant and necessary for considering appointment "regular appointment" existed and were present in this case. Thus, their selection and appointment for all purpose was regular and there was neither any illegality nor even any irregularity in their appointment however, on account of mode of payment of salary, the petitioner AMTS did not consider them on regular establishment in the matter of VRS. In this view of the matter, the claimants would contend that entire tenure of their service should be taken into consideration for the purpose of determining eligibility for pension under the VRS and there is no justification for not considering their appointments on regular establishment.
(c) It is also relevant to note that during their entire tenure the claimants were not continued on daily wage basis (i.e. they did not continue to work/ to be employed on daily wage until the time they opted for voluntary retirement under the Scheme). Actually, within 5 or 6 years their services were converted into the category "acting services". The total tenure of their service is Page 27 HC-NIC Page 27 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 20 years (or more in some cases) and out of total tenure of 20 years of service, the claimants rendered almost 15 to 16 years of service in the category of "Acting Service" which, even according to the submission and admission by the petitioner AMTS, the service rendered by the employees in the category of "acting service" is eligible for pension and such service comes within the purview of "qualifying" or "pensionable" service.
(d) It is undisputed fact that after the service of the claimants were converted to "Acting Service" category each claimant worked in that category for almost 15 to 16 years. Thus, it cannot be disputed that the claimants had completed 15 to 16 years of "pensionable service"
or "qualifying years for pension".
6. From above mentioned details and facts, it becomes clear that in present case, for determining the legality and validity of claimants' demand, it is necessary to keep in focus that (a) the claim is essentially and wholly based on the terms of the VRS whereby the petitioner AMTS assured and promised certain benefits in accordance with the terms of VRS and on compliance of those terms; (b) and it is also necessary, in present case, to keep in focus that Page 28 HC-NIC Page 28 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT there is substantive difference between the terms of VRS as well as terms of Pension Scheme of the petitioner AMTS on one hand and the government's pension Rules [i.e. GCS (Pension) Rules, 2002] on the other hand; and (c) the third important aspect which should also be kept in focus is that the VRS is a special and separate contract independent of (i) contract of service (ii) service regulations and (iii) the pension scheme. The VRS comprises its own terms and conditions and that the demand of the claimants is based on the strength of the terms and conditions of the VRS and that therefore, the claimants' entitlement has to be examined in light of the provision under the VRS of the petitioner AMTS; and (iv) so far as claimants' voluntary retirement under the VRS of the petitioner AMTS and so far as the entitlement for the benefits payable under the VRS, are concerned, the terms of VRS would prevail over other general provisions.
6.1 Further, the pension scheme/rules provide, inter alia, that pension regulation applicable to the government employee (and the amendments effected therein from time to time) will be applicable in the matter of pension to the employees of the petitioner AMTS, however, special provision and/or special benefits and/or Page 29 HC-NIC Page 29 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT special concessions offered by the petitioner AMTS under the VRS of the petitioner AMTS read with the pension scheme of the petitioner AMTS cannot be ignored or diluted or compromised or discarded and sacrificed on the premise that the government's pension Rules prescribe different Rules, otherwise the object of the VRS would be frustrated and it would also frustrate and defeat and negate the promise by the petitioner AMTS on which the claimants relied and in light of which the claimants changed their position. It is pertinent that VRS is a separate and specific contract consciously entered into by and between the petitioner AMTS and those who opt for VRS. Thus, the terms of the VRS and the Pension Scheme must be given effect to - rather then ignoring or diluting or sacrifying them.
7. In this backdrop, it is appropriate to recapitulate relevant facts. It has emerged from the record and the submissions that:-
(a) appointments of all claimants were made in regular manner after following prescribed procedure and in accordance with applicable Rules and prescribed procedure for selection and recruitment;
(b) the claimants possessed and fulfilled the eligibility criteria for selection and appointment , viz. qualifying criteria Page 30 HC-NIC Page 30 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT related to age limit requisite educational qualification, experience, etc. for the posts for which they were selected and appointed;
(c) from first day of their appointment, the claimants were undisputedly, members of G.P.F. and they were also members of the pension Scheme of the petitioner AMTS and for entire tenure of their service they had worked regularly, continuously and without any break and they worked fulltime on the post of Driver/conductor/ workshop bodysmith;
(d) despite such facts, during initial period of their service, salary was paid to the claimants on daily basis;
(e) however, subsequently i.e. within about 5 or 6 years of initial service, their service were converted to the category of "acting service";
(f) even according to submission, statement and admission by the petitioner AMTS, the period of service rendered in the category of "acting service" is considered "pensionable service" or "qualifying years for pension" or "eligible service" and is taken into account for determining eligibility / entitlement for pension;
(g) therefore, the services rendered by the claimants atleast from the date when their service were converted to the status of Page 31 HC-NIC Page 31 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT "acting service" is eligible for pension;
(h) at the time when the claimants opted for voluntary retirement under the VRS, they were not working on daily wage establishment but they were treated and considered in category of "acting service". This fact is not disputed even by the petitioner AMTS.
(i) according to the VRS of the petitioner AMTS, any employee retiring after 1.1.2005 and who was member of pension scheme and whose service was pensionable was considered eligible to apply for the VRS. Undisputedly, all claimants fulfilled said criteria.
(j) The said provision brought in picture and injected the pension scheme into the VRS.
(k) according to the pension scheme, the employee who had completed pensionable service for ten years, was considered eligible for pension.
(l) undisputedly, total tenure of their service, at the time when the claimants opted for voluntary retirement, was 20 years, out of which service of 15 to 16 years was rendered in the category of "Acting Service". 7.1 Now, in light of above mentioned facts, it is appropriate and necessary to take into account relevant provision under the pension scheme of the petitioner AMTS and the provision under the VRS. The VRS of the petitioner AMTS provide, Page 32 HC-NIC Page 32 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT inter alia, that :-
(i) Voluntary Retirement Scheme:
"(1) All the employees retiring after 1/1/2005 are entitled to join this Scheme. (This Scheme shall not be applicable to the employee retiring between 31/12/2003 to 31/12/2004.) (2) The employee who is a member of Pension Scheme and whose service is pensionable will be paid amount of pension as per Pension Rules."
The said clause/para No.2 of the VRS brings in picture the pension Scheme of the petitioner AMTS and that therefore, the entitlement of claimants for pension must be determined in light of the terms and conditions of the pension Scheme of the petitioner AMTS.
(ii) The pension scheme provides, inter alia, that:-
Pension Scheme:
"[3] At the time of retirement, the employee who has rendered the pensionable service for ten years and above will receive monthly pension during his life- time."
7.2 On cumulative and conjoint reading of the VRS of the petitioner AMTS and the pension scheme of the petitioner AMTS and the facts related to their appointments and the tenure of their service, below mentioned picture has emerged that:-
(A) [I] except the criteria prescribed by clause No.1 and 2 of VRS any other condition or criteria or requirement is not prescribed Page 33 HC-NIC Page 33 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT for joining and availing the VRS;
[ii] according to the provisions under the said schemes of the petitioner AMTS, the provision under the pension scheme of the petitioner AMTS have to be taken into account for determining as to whether the concerned employee had rendered sufficient "pensionable service" (so as to be eligible for pension in accordance with the pension scheme) or not; [iii]as declared and admitted by the petitioner AMTS, the service rendered in the category of "acting service" is considered "pensionable service" / qualifying service for pension;
[iv] according to the pension scheme, the employee who had rendered "pensionable service" for 10 years and above, would be considered eligible for monthly pension during his life time and since the service rendered in the category of "acting service"
is, even according to the submission and admission by the petitioner AMTS, considered pensionable service, it would follow that the claimants who had rendered service of not less than 10 years in category of "acting service" would be entitled for monthly pension;
[v] according to Rule 25 of GCS (Pension) Rules defines qualifying service for the Page 34 HC-NIC Page 34 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT purpose of GCS (Pension) Rules only that category of service which fall under clause
(a) to (h) are not included in or can be excluded from qualifying service.
[vi] the service for 15 to 16 years (or more, in some cases) rendered by the claimants in the category of "Acting Service" would not fall under clause (a) to (h) of said Rule 25(1) i.e. under excluded categories. [vii]Therefore, in any case, the claim for pension by the claimants - who had completed service of not less than 10 years in the category of "Acting Service" - could not have been discarded on the strength of any provision in the GCS (Pension) Rules. (B) On the other hand, the facts related to the appointment and employment of the claimants have established that:-
[i] they were, undisputedly, appointed in accordance with service regulations and they were members of GPF as well as pension scheme right from first date of their appointment; [ii] for entire tenure of their service they had worked regularly, continuously and without any break and they worked fulltime on the post of Driver/conductor/ workshop bodysmith, however, for initial 5 to 6 years the petitioner AMTS paid salary to the claimants on daily wage basis and after Page 35 HC-NIC Page 35 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT service of 5 or 6 years, their services were converted into category of "acting service"; [iii]total tenure of service of the claimant is 20 years (or more in some cases) and the tenure of their service in category of acting service is 15 to 16 years and all claimants would have reached age of superannuation, after 1.1.2005.
[iv] even if initial period of their service were to be excluded then also undisputed fact on record is that total tenure of claimants' service in the category of "acting service"
(which, even according to the petitioner AMTS, is considered eligible category of service for pension) was more than 10 years, rather it was not less than 15 or 16 years in case of each of the claimants. Consequently, the claimants fulfilled the criteria prescribed under the VRS of the petitioner AMTS and pension scheme of the petitioner AMTS and their case falls within purview of clause 3 of the pension scheme of the petitioner AMTS read with clause 2 of the VRS.
8. Above mentioned facts and above referred provisions under the VRS and the Pension Scheme have established that at the time when the claimants opted for voluntary retirement under the VRS they were eligible and entitled for Page 36 HC-NIC Page 36 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT pension in accordance with the provision under the VRS read with the provisions of Pension Scheme/Rules of the petitioner AMTS.
9. Despite such position and facts the petitioner AMTS ignored their entitlement for pension and to justify its decision and action, the petitioner AMTS cited Rule 25 of GCS (Pension) Rules and it claimed that the claimants are not entitled for pension. Therefore, it is necessary, at this stage, to turn to said Rule 25 and examine whether the decision of the petitioner AMTS is correct and legally justified or not. The said issue is related to and intertwined with the contention raised by learned Senior Counsel for the petitioner AMTS viz. that since the claimants have not challenged Rule 25 of GCS (Pension) Rules, their demand and grievance should be considered within four corners of said Rule 25.
9.1 Therefore, it would be convenient and appropriate at this stage to deal with the said contention alongwith scope and effect of said Rule 25.
10. So far as the said contention of AMTS and said Rule 25 are concerned, the said issue can be and deserve to be examined from two perspective Page 37 HC-NIC Page 37 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT and premise viz. (i) in light of relevant features and method and mode of appointments of the claimants and their service, their appointments and entire tenure of their service should have been considered "on regular establishment" i.e. within the purview of said expression under Rule 25 of GCS (Pension) Rules, and; alternatively (ii) the tenure of service should have been severed and the period of service rendered in the category of "Acting Service" should have been taken into account for determining claimants' eligibility and entitlement for pension.
10.1 In this context, it is pertinent to mention at this stage that even if the matter is examined from either of the said two perspectives or from both perspective, ultimate conclusion would be that at the time when the claimants opted for voluntary retirement under the VRS of the petitioner AMTS, they were entitled and eligible for pension and their claim should not have been rejected by the petitioner AMTS.
10.2 Besides this, foregoing discussion has also established the claimants' eligibility and entitlement for pension (upon acceptance of their application for voluntary retirement under the VRS) without any assault on or without any Page 38 HC-NIC Page 38 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT violence to and without ignoring said Rule 25 and also without holding that said provision is bad in law.
11. Nonetheless, other aspects related to said Rule 25 and said contentions may be examined at this stage.
11.1 It would be appropriate and convenient to first address the perspective at serial No.(i) above i.e. the aspect related to the expression "all service including .... on regular establishment in any capacity ..." (in the Rule
25) and the issue whether, for the purpose of the VRS and pension, the appointment and the service of the claimants would tantamount to appointment and service "on regular establishment", or not [because the discussion on this count would also address the scope and effect of Rule 25].
12. The facts discussed above has brought out that the claimants were appointed in accordance with rules prescribed for selection and recruitment under the service regulation of the petitioner AMTS.
12.1 Thus, as such, there was no basis or justification to consider the appointments or services of the claimants as "not on regular Page 39 HC-NIC Page 39 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT establishment".
12.2 Actually, when (a) an employee is appointed in accordance with and upon compliance of the selection/recruitment procedure prescribed by service regulation and he, undisputedly, fulfills eligibility criteria; and (b) he is continued in the service with the same employer without any break in service, and (c) his service is not intercepted by any break, (d) and when he is not continued in service only on account of direction or order of Court (e) and when his initial appointment is not illegal or irregular or by way of back door entry, (f) and when the concerned employee has worked continuously and on fulltime basis and without any break for 20 years or more, then there would not be any justification for (i) not considering their appointment and service regular/on regular establishment and (ii) rejecting their claim for pension on the ground that appointment was not on regular establishment. The appointments and service with the above characteristics and while meet with said features cannot be treated as "not on regular establishment".
12.3 In this context, it is pertinent to note that mere nomenclature should not have been and could not have been used as ground for ignoring or Page 40 HC-NIC Page 40 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT rejecting the case of claimants for pension. Unfortunately, the petitioner AMTS ignored that nomenclature alone and/or the method/mode of payment of salary would not be and cannot be sole determinative factor or solitary yardstick to ascertain and determine as to whether the appointment is regular or not and/or whether the appointment is on regular establishment or not and that for the said purpose other factors viz. the status or category of an employee and the manner/method of selection and appointment, nature of duties/work they perform and the post on which they were/have been appointed, would be relevant and cumulative effect of such factor and criteria should decide the status or category of employee.
12.4 In present case, the facts related to selection and appointment of claimants which have been discussed hereinabove have brought out that the claimants were appointed after undergoing selection and recruitment process in accordance with service regulations of the petitioner AMTS and their appointments were not irregular or illegal and they were not appointed by way of backdoor entry. Above discussed facts, coupled with the fact that (a) the claimants were engaged for fulltime work and they actually worked fulltime (b) they were engaged as and on the Page 41 HC-NIC Page 41 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT posts of driver, conductor and workshop bodysmith
(c) they possessed prescribed qualification and fulfilled eligibility criteria and (d) they worked continuously with the same employer without break for 20 years or more, cumulatively establish that the appointments and service of claimants was regular and the claimants were appointed on "regular establishment" and that there was no justification to consider their appointment and service as "not on regular establishment".
12.5 Foregoing discussion has brought out that actually the appointments and services of the claimants, including initial period of their service (i.e. the period prior to the date when their service was converted into the category of "Acting Service") could not have been and should not have been treated as appointments "not on regular establishment" and/or services on "daily rated establishment". In this context it would be appropriate to take into account observations by the High Court of Punjab and Haryana (D.B.) in case between Kashmir Chand vs. Punjab State Electricity Board, 2005 (4) SCT 298 wherein the Court observed, inter alia, that:-
"9. In view of the above, we are of the opinion that services rendered by the petitioner on daily-wage and work-charge basis should be counted as qualifying service for pensionary benefits. The petitioner was working as a whole-time employee and was paid wages on monthly basis. The respondents have not disputed that there was no wilful absence from duty by the petitioner. In such circumstances, the period of service of 6 Page 42 HC-NIC Page 42 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT years and 29 days rendered by the petitioner on daily-wage basis has to be reckoned while computing the pensionary benefit of the petitioner. Consequently, we allow the writ petition, quash the order, Annexure P-4 and direct the respondents to redetermine the pensionary benefits of the petitioner by taking into consideration his daily-wage service of 6 years and 29 days. The consequential benefits accruing to the petitioner shall be paid to him within a period of two months of the receipt of a certified copy of the order."(emphasis supplied) So far as said observations are concerned it is relevant to note that in the said case the petitioner was appointed on daily wage basis as Wireless Operator on 21.3.1987 where he continued as such till 1993 and he was promoted as Work Charge Electrician w.e.f. 21.4.1993 where he continuously worked upto 1997 and his service was regularized w.e.f. 3.4.1997. It was in background of the said fact that High Court observed, inter alia, that:-
"9. ...we are of the opinion that services rendered by the petitioner on daily-wage and work-charge basis should be counted as qualifying service for pensionary benefits. The petitioner was working as a whole-time employee and was paid wages on monthly basis. The respondents have not disputed that there was no wilful absence from duty by the petitioner. In such circumstances, the period of service of 6 years and 29 days rendered by the petitioner on daily-wage basis has to be reckoned while computing the pensionary benefit of the petitioner...." (emphasis supplied) The petitioner AMTS has, unfortunately, disregarded this position.
In the said decision the High Court referred to the observations in earlier decision viz. Kesar Chand vs. State of Punjab, 1982 2 RSJ 629 wherein the Court observed, inter alia, that:-
"8. In Kesar Chand's case, the Full Bench while dealing with a similar controversy held as under:-
Once the services of a work-charged employee have been regularised, there appears to be hardly any logic to deprive him of the pensionary benefits as are available to other public servants under Rule 3.17 of the Rules. Equal protection of laws Page 43 HC-NIC Page 43 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because a provision which is arbitrary involves the negation equality. Even the temporary or officiating service under the State Government has. to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among Government servants who eligible for pension and those who started work-charged employees and their services regularised subsequently, and the others is not based on any intelligible criteria and, before, is not sustainable at law. After the services of a work-charged employee have n regularised, he is a public servant like other servant. To deprive him of the pension is not only unjust and inequitable is hit by the vice of arbitrariness, and for se reasons the provisions of sub-rule (ii) of Rule 3.17 of the Rules have to be struck down being violative of Article 14 of the Constitution." (emphasis supplied) In the said case also, the Court did not approve rejection or elimination of claim for pension by person engaged on work charge basis. Important observation is "after the service.... have been regularized he is a public servant ..... to deprive him of pension is not only unjust and inequitable...."
12.6 It would also be appropriate and profitable to take into account the observations by the High Court of Punjab and Haryana (D.B.) in case between Hanumant Singh vs. State of Haryana 2008 (4) RSJ 756 wherein the Court examined grievance of the petitioner in light of the facts recorded in paragraph Nos. 3 to 6 which read thus:-
"3. Short and shorn of unnecessary details, the case of the petitioners is that they were appointed as Diesel Pump Attendants on 11.12.1973, 20.5.1977 and 18.4.1974 respectively. Subsequently, they were promoted to the posts of Assistant Cashiers in the pay scale of Rs.400-600..."
In light of the said grievance raised by the Page 44 HC-NIC Page 44 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT petitioners the High Court examined the case with reference to three issues viz. (1) Whether ad hoc service / work charged service, followed by regular service, can be counted for the purposes of grant of higher pay scale / benefit of Assured Career Progression on completion of 8/18 or 10/20 years of service? (2) Whether ad hoc service / work charged service, followed by regular service, can be counted for the purpose of grant of additional increment in the running scale on completion of 10/20 years or 8/18 years of service? (3) Whether ad hoc / work charged service, followed by regular service, is to be counted for the purpose of pension and seniority?
After considering above mentioned facts High Court answered the said issues with following decision and observations:-
"22. Therefore, in view of the above discussion, question No. 1, referred to above, stands answered against the petitioners whereas question Nos. 2 and 3 stand answered in favour of the petitioners and against the respondents and it is held as under:-
(a) ad hoc/work charged service followed by regular service shall not be counted for the purposes of grant of higher pay scale / benefit of Assured Career Progression Scheme on completion of 8/18 or 10/20 years of service.
(b) ad hoc/work charged service followed by regular service shall be counted for the purposes of grant of additional increment in the running scale on completion of 10/20 or 8/18 years of service.
(c) ad hoc service followed by regular service shall be counted for the purposes of pension and seniority"
(emphasis supplied) Thus, in the said decision also, the Court held and observed that, "(c) ad hoc service followed by regular service shall be counted for the purposes of pension and seniority"
Page 45 HC-NIC Page 45 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT Thus, by the said decision even ad-hoc service is held to includible for the purpose of determining eligibility for pension.
Above cited decision and above quoted observation support and fortify the conclusion by this Court.
12.7 At this stage, it will not be out of place to take into account the concept of substantive post/substantive appointment which is succinctly explained by Apex Court in the decision in case of Baleshwar Dass. Actually from the said details, it also comes out that it cannot be ignored or denied that they held substantive post. On this count, it would be profitable to take into account observations by Hon'ble Apex Court which explain the concept of appointment in substantive capacity or on substantive post. In case of Baleshwar Dass vs. State of UP (1980) 4 SCC 226, Hon'ble Apex Court observed, inter alia, that:-
"26. We see no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. In Service terminology, perhaps, eyebrows may be raised when we say so, but then, we must remember that the State itself in its counter-affidavit has construed R. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years). This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Page 46 HC-NIC Page 46 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT Service. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity. The only advantage for permanent appointees, i. e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of official life.
29. Substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of a quasi-permanent nature, there is not much to distinguish the quality of service as between the two. Patwardhan's case, (1977) 3 SCR 775 at pp. 793, 794, 795, 796 and Chauhan's case, (1977) 1 SCR 1037 have primarily or in passing clarified the equal value of officiating service.
(30.) In Patwardhan's case, (AIR 1977 SC 2051) Chandrachud, J. observed in the course of the discussion "There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both". Later, the learned Judge observed in the same strain :
The fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on 22.03.1937 and 13.04.1945 cannot detract from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IV cadre.
The Court, in that case, also held that confirmation cannot be the sole touchstone of seniority as that will be indefensible:
Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an. employee should be confirmed or not depends on the sweet will and pleasure of the government ...."
31. What, in the context, is a substantive capacity vis-a-vis an appointment to a post? In our view, the emphasis imported by Page 47 HC-NIC Page 47 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential". (Black's Legal Dictionary, 4th Edn. p. 1597.) We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period holds it on probation subject to confirmation." (emphasis supplied) 12.8 Unfortunately, the petitioner AMTS did not consider the appointments and services of the claimants as "appointments on regular establishment". Not only this, but the petitioner AMTS arbitrarily disregarded entire tenure of claimants' service including the period of 15 to 16 years of service rendered in the category of "Acting Service" and thereby the petitioner AMTS turned entire service of the claimants into ashes.
13. I may now turn to the perspective mentioned at serial No.(ii) above.
14. Now, so far as aforesaid contention by the petitioner AMTS and the provision under said Rule 25 are concerned, it is necessary to keep in focus that essentially the claimants' demand and the grievance have to be considered in light of and within the purview of the terms and Page 48 HC-NIC Page 48 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT conditions of the VRS of the petitioner AMTS and so far as Rule 25 of GCS (Pension) Rules is concerned, the said Rule would be relevant and applicable to the extent its applicability is contemplated, provided for and permissible under the VRS and the pension scheme of the petitioner AMTS and that said Rule 25 cannot operate or cannot be enforced in a manner which will render special provisions or concessions or benefits (offered under the VRS read with the pension scheme) redundant or nugatory.
14.1 In this context, it is relevant to also keep in focus that the special and specific provision under the pension scheme and the VRS of the petitioner AMTS would prevail over any general provision including the provision under GCS (Pension) Rules so far as the matters related claimants' voluntary retirement under the VRS of the petitioner AMTS and their claim for pension in accordance with the terms of VRS read with the terms of Pension Scheme/Rules of the petitioner AMTS are concerned. The special and specific benefits and/or concessions granted by the petitioner AMTS under said VRS must be given effect to and they cannot be made redundant. Otherwise, the object of said scheme would be frustrated.
Page 49 HC-NIC Page 49 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 14.2 One important part or feature of this aspect is that the petitioner AMTS has conveniently ignored and disregarded the fact that even according to Rule 25 only that part of the service which falls within the purview of clause
(a) to (h) of Rule 25(1) of GCS (Pension) Rules can be excluded from computing "pensionable service" or "qualifying service" or "qualifying years of service for pension" but the period of service which strictly does not fall within the purview of clause (a) to (h) cannot be excluded and cannot be ignored and can not be wiped out.
14.3 Further, it is also pertinent that plain reading of Rule 25 makes it clear that all types of service on regular establishment, even temporary or interrupted service, are considered eligible or pensionable service. From plain reading of said Rule it also comes out that the said provision contemplates that if the character and nature of employment and status of an employee is converted during progress of his service then for purpose of computing pensionable service or qualifying years of service for pension total tenure/period of service can be severed and the period of service which strictly does not fall within the purview of clause (a) to
(h) of Rule 25(1) should be taken into account and should be included for determining Page 50 HC-NIC Page 50 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT pensionable service and the period of service rendered in the category which does not fall under clause (a) to (h) of Rule 25 cannot be mechanically and arbitrarily ignored and cannot be wiped out.
14.4 However, the petitioner AMTS ignored that actually entire tenure of their service should have been considered on "regular establishment"
or (ii) total tenure of claimants' service should have been bifurcated and the period during which the claimants worked on daily wage basis could have been severed and atleast that period of service which the claimants rendered in the category of Acting Service should have been taken into account for computing / determining period of pensionable service because of two main reasons viz. (a) even according to the submission and admission by the petitioner AMTS, the service rendered in the category of "acting service" is eligible for pension and (b) the service of 15 to 16 years rendered by the claimants in the category of "acting service" would not fall within the purview of clause (a) to (h) of Rule 25(1). Consequently, said period of more than 15 to 16 years of service should not and could not have been ignored or wiped out, more particularly because the said period of service which the claimants rendered in that category before they Page 51 HC-NIC Page 51 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT opted for voluntary retirement under the VRS was sufficient for being eligible and entitled for pension in accordance with the terms of VRS read with the terms of pension scheme.
14.5 Thus, in light of the provision under the VRS and the Pension Scheme, the claimants were eligible for pension (since according to the provision under the Pension Scheme and the VRS an employee would be eligible for pension upon completion of pensionable service of 10 years) and even according to Rule 25, their claim for pension could not have been discarded or rejected inasmuch as the appointment and service of the claimants cannot be termed as "not on regular establishment" and even if their appointments and service are not considered "on regular establishment" then also the service rendered by the claimants in the category of acting service cannot be ignored because that period would not fall within the purview of clauses (a) to (h) of Rule 25 and therefore, the case of the claimants could not have been considered under "excluded category" (i.e. within purview of clause (a) to
(h) of Rule 25) and could not have been rejected.
14.6 The contrary decision of the petitioner AMTS is, therefore, unjust, erroneous and not sustainable. Foregoing discussion also brings out Page 52 HC-NIC Page 52 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT that the petitioner AMTS raised above mentioned contention without taking into account the aspects discussed above and it does not deserve to be entertained.
15. Foregoing discussion has also established that even when the claimants' claim and right - for pension - is examined without ignoring the applicability of said Rule 25 and while keeping said Rule in focus and either in light of provision under the VRS read with the Pension Scheme or in light of the provision under Rule 25 of GCS (Pension) Rules or even by conjoint reading of the provision under the VRS and the Pension Scheme as well as the provision under the Rule 25, the said provisions conjointly or independently and jointly or severally lead the Court to same conclusion viz. the decision to consider the appointments and service of the claimants as "not on regular establishment" is incorrect and that even otherwise in light of the fact that having rendered 15 or 16 years of service (out of total tenure of more than 20 years) in the category of "acting service"
(which, even according to submission and admission by the petitioner AMTS, is considered eligible for qualifying years of service for pension) the claimants are entitled and eligible for pension because they fulfilled the conditions Page 53 HC-NIC Page 53 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT and requirements prescribed by the terms of VRS and Pension Scheme and that their demand could not and should not have been rejected.
15.1 On conjoint reading and consideration of all relevant facts and the terms and conditions of VRS, the clarification and admission by the petitioner AMTS (with regard to the service in the category of Acting Service) and the terms and conditions of the pension scheme of the petitioner AMTS as well as said Rule 25, it has emerged that when the Court proceeds in the case and examines the case in light of the contention by the petitioner AMTS [that since the claimants were engaged on daily wage basis they cannot be considered eligible for pension and that their service cannot be considered eligible or qualifying service for pension] then also, it comes out clearly that at the most, period of 5 or 6 years of initial stage of their service (i.e. before the date when service of the claimants were converted into "acting service") could be excluded but other and severable part i.e. major part/period of service (i.e. more than 15 to 16 years of service rendered by the claimants in the category of "Acting Service") deserved to be and must have been taken into account for determining claimants' eligibility and entitlement for pension (which, according to Page 54 HC-NIC Page 54 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT the Rules of Pension Scheme, was sufficient for eligibility) and the said period of service cannot be and could not have been ignored or wiped-out inasmuch as even according to the admission by the petitioner AMTS, the service rendered in the category of "acting service" is "pensionable service" or "qualifying years of service" and according to paragraph/clause No.3 of the Pension Scheme an employee who completes 10 years of pensionable service would be eligible for pension.
15.2 The petitioner AMTS, however, ignored and overlooked the fact that there was no basis or justification for not considering the claimants' appointments and their service on regular establishment. The petitioner AMTS also ignored the provision under the pension scheme and the VRS, more particularly the petitioner AMTS ignored the provision which prescribes that an employee with pensionable service of not less than 10 years would be entitled for monthly pension during his life time. The petitioner AMTS also ignored its own admission that service rendered in the capacity/category of "Acting Service" is pensionable service. The petitioner AMTS also ignored the fact that the claimants had rendered service for 15 to 16 years in the category of "Acting Service" and that therefore, Page 55 HC-NIC Page 55 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT in light of clause - 3 of the Pension Scheme/Rules read with paragraph No.2 of the VRS the claimants were eligible for and entitled for pension because they had rendered requisite period of pensionable service before they opted for voluntary retirement under the VRS.
15.3 By ignoring above mentioned relevant facts and provisions under the VRS and the pension scheme and on wrong construction and/or by wrong application of Rule 25 and by also ignoring the position with regard to "acting service" as well as the period of service rendered by the claimants in that category, the petitioner AMTS wrongfully, arbitrarily and without any basis and justification rejected the demand, right and claim of the claimants. The said decision and action of the petitioner AMTS cannot be sustained.
16. On this count, it would be appropriate at this stage to deal with one contention raised by the petitioner AMTS which is, to certain extent connected with above discussed aspects. The petitioner AMTS submitted that the claimants had not completed service of 20 years at the relevant time and therefore, they are ineligible for pension.
Page 56 HC-NIC Page 56 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT
16.1 While raising said contention the petitioner AMTS conveniently overlooks the provision (clause No.3) under the pension scheme of the petitioner AMTS in light of which it becomes clear that the said contention is neither justified nor correct. The contention overlooks and ignores the terms of VRS, particularly paragraph/clause No.1 and 2 of the VRS and paragraph No.3 of Pension Scheme mark departure from the provision under Rule 48 of GCS (Pension) Rules. The said Rule 48 provides that on completion of service of 20 years employee may seek to voluntarily retire from service. However, the paragraph/clause No.1 of VRS provide that those employees who (1) would be retiring after 1.1.2015; and (2) who had completed 10 years of pensionable service will be entitled for pension. The said provision under the VRS and the Pension Scheme/Rules of the petitioner AMTS mark substantial departure from Rule 48 of GCS (Pension) Rules. The VRS is a special contract for specific purpose and it provides for/contains and offers special and specific benefits. Thus, the terms thereunder - alongwith the provision under the Pension Scheme/Rules - will, so far as matters related to voluntary retirement under the VRS is concerned, prevail over other provisions. The said provisions, read conjointly, give out that the employees who opted for voluntary retirement and whose applications were accepted Page 57 HC-NIC Page 57 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT by the petitioner AMTS were, on fulfillment of the conditions in the VRS, eligible and entitled for payments in accordance with and in consonance with the terms of the VRS. The paragraph No.2 of the VRS imports Pension Scheme into the VRS and that therefore, clause No.3 of the Pension Scheme was available to the claimants. Besides this, when employer offers special VRS and attracts the employees with promises/ assurances for liberal benefits/payments and concessions or relaxes existing terms and conditions so as to attract the employees to retire voluntarily means that the VRS is an exception and a departure from existing/applicable provision, if any, with regard to retirement/ voluntary retirement. Therefore, in case of voluntary retirement under the VRS, the terms of VRS would prevail and the benefits assured and promised by the VRS cannot be denied to the employees (who opted for voluntary retirement). It is pertinent that the employees relied on the promise and assurance stipulated by virtue of the terms of the VRS and they, thereby, altered their position. Therefore also, violation of or deviation from the terms of the VRS cannot be sustained. For these reasons, the objection is not sustainable and does not deserve to be sustained. The said objection also deserves to be rejected and it is hereby rejected.
Page 58 HC-NIC Page 58 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT
17. Foregoing discussion on above mentioned aspects has brought out and established that:-
[a] the appointments and entire tenure of claimants' service deserve to be considered as "appointment and service on regular establishment" for the purpose of pension and/or for the purpose of Rule 25(1) of GCS (Pension) Rules and there is no justification for not considering their appointments and entire tenure of their service "on regular establishment";
[b] their appointment and service deserved to be and should have been considered "on regular establishment". Their appointment and entire tenure of service was, thus, covered within the purview of "qualifying service". [c] the decision of the petitioner AMTS of not considering their appointments and entire service as "on regular establishment" not considering the claimants eligible and entitled for pension is incorrect, unjust, arbitrary and contrary to applicable provision;
[d] even if it is assumed that the period of service rendered by the claimants on daily wage basis (i.e. 5 or 6 years of initial service) cannot be considered on regular establishment then in that even the total Page 59 HC-NIC Page 59 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT tenure could have been bifurcated and the period of service on daily wage basis could have been severed and excluded but the period of service rendered by them in the category of "acting service" could not have been excluded or ignored while computing / determining "pensionable service" or "qualifying service" or "qualifying years of service for pension";
[e] even otherwise the period of service rendered by the claimants in the category of acting service was sufficient - in light of paragraph/clause No.3 of Pension Scheme/Rules of the petitioner AMTS read with paragraph/ clause No.2 and clause No.1 of the VRS, for determining claimants' eligibility and entitlement for pension and holding that in light of clause No.3 of Pension Scheme, the claimants are entitled for pension and that therefore, even otherwise, having regard to the terms of VRS and the Rules of Pension Scheme, the claim and demand and the right for pension should not have been denied and/or rejected;
[f] the petitioner AMTS also ignored that there is difference and distinction between determining eligibility and entitlement for pension and which pension would be payable in light of the formula under the VRS and the Page 60 HC-NIC Page 60 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT Pension Scheme.
17.1 Foregoing discussion brings out and establish that the decision of the petitioner AMTS viz. not considering the claimants entitled for pension under the terms of VRS is unjust, arbitrary and contrary to the terms of the VRS of the petitioner AMTS read with the Pension Scheme of the petitioner AMTS.
18. Since, the petitioner AMTS also raised certain other objections, the petition and the demand. Therefore, the said other contentions can be considered at this stage.
18.1 So far as the objection on the ground of gap of 7 years is concerned, this Court is of the view that if, in law and in light of the applicable regulations and in consonance with the provisions under the VRS, the claimants are eligible and entitled for pension then such claim should not be denied or should not be frustrated only on the ground that the claimants raised the demand after 7 years. The relief, if available in accordance with law, can be modified by granting the benefit either from the date of demand or from the date of reference or from the date of award. However, the submission that the claim should be outrightly and completely rejected on Page 61 HC-NIC Page 61 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT the ground that the demand came to be raised after 7 years, sounds too tall for being accepted.
18.2 On this count, it is also appropriate to take into account the claimants' case with reference to the said contention. The learned advocate for the claimants submitted that actually, the claimants had started demanding pension within short time after they accepted VRS and certain correspondence was also entered into and exchanged between the claimants and the petitioner corporation, however, when any positive response or feedback was not received from the corporation for long time, then the claimants, after waiting for sometime, initiated proceedings. In this view of the matter, the said contention/objection is not sustainable and does not deserve to be entertained. It deserves to be rejected and it is hereby rejected.
19. The petitioner AMTS also claimed that the claimants had accepted the amount of compensation and that therefore, demand for pension is unjustified and after having accepted compensation, the demand for pension is afterthought. The demand by the claimants cannot be opposed or rejected on the ground that the employee accepted the amount paid by the Page 62 HC-NIC Page 62 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT petitioner AMTS. When the compensation was paid to the claimants, they accepted it without realizing that the petitioner AMTS will deny them the benefit of pension. Only when the petitioner AMTS did not pay pension the claimants realized that they are not considered eligible for pension and therefore, they pursued the matter, for sometime, with the authorities and on failure of the attempts/discussion with the authorities, they raised the dispute. In this view of the matter, the demand by the claimants could not have been rejected on the ground that they accepted lump sum compensation.
19.1 In this context, it is also necessary to note that while the VRS provides that the employees who are not entitled for pension will be paid lump sum compensation, however, the said provision cannot be read to mean that merely because the petitioner AMTS wrongly pays lump sum compensation to an employee and if the petitioner AMTS wrongly (i.e. despite his entitlement and eligibility for pension) deprives such employee of his claim/right then on account of arbitrary or unjust action of the petitioner AMTS such employee's eligibility or entitlement will be lost forever.
19.2 If the contention of the petitioner AMTS or Page 63 HC-NIC Page 63 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT the interpretation urged by the petitioner AMTS is accepted and given effect to then it will give rise to unjust and incongruous situation inasmuch as employee's entitlement and eligibility for pension will be wiped-out on account of such erroneous and/or unjust decision of the petitioner AMTS. The said provision of VRS does not admit such construction and such construction of the VRS militates against the scheme and its object.
19.3 Further, if an employee is entitled for particular benefit under any special scheme (e.g. the VRS and the pension scheme in present case) and instead of paying the benefit which the employee is eligible and entitled for, if the employer pays different benefit and the employee accepts such amount without consciously and willfully waiving his right or entitlement for main benefit, then, in that event the right and demand of the employee for unpaid benefit (which is actually payable/available to the said employee according to the terms of the scheme) cannot be opposed or rejected on the spacious plea that since the employee accepted the amount/benefit paid by employer, the employee subsequently cannot claim said other benefit which he is actually entitled for.
Page 64 HC-NIC Page 64 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT 19.4 Besides this, merely because the claimants accepted the amount (lump sum compensation) offered by the petitioner AMTS such claimant would not lose his right or eligibility/entitlement for pension and/or rule of estoppel will not hit his claim and right.
20. As its last objection, the petitioner AMTS sought to rely on the VRS which was introduced by State Government for its employees in February 1978. The reliance placed on the provision of said VRS is not only unjustified, but impermissible inasmuch as the VRS of the petitioner AMTS which came to be introduced vide circular No.18 dated 16.12.2003 is independent of the VRS offered by government in 1978 and the terms and conditions of the VRS for government employees cannot be imported and applied to employees of the petitioner AMTS. The said contention/objection is misconceived and it is mentioned only for the sake of record. It deserves to be rejected and it is hereby rejected.
21. The discussion in this decision has brought out that the decision and action of the petitioner AMTS rejecting the demand by the claimants for pension under and in accordance with the terms of VRS is also contrary to the Page 65 HC-NIC Page 65 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT provisions of VRS read with the provisions under the pension scheme/Rules of the petitioner AMTS and it deserved to be set-aside and that the learned Tribunal has not committed any error in setting aside the said decision and action of the petitioner AMTS. Though on different ground and though for different reasons, the learned Tribunal reached to correct and justified conclusion. The said conclusion and findings recorded by the learned Tribunal are correct and justified and do not warrant any interference.
21.1 Of course, in light of the fact that the learned Tribunal has granted the claim from the date of the claimants' retirement some modification with regard to the said final direction is required inasmuch as the claimants actually invoked the machinery under the I.D.Act and raised "Industrial Dispute" against the decision of the petitioner AMTS rejecting their claim for pension, after almost 7 years. Having regard to the said fact, learned Tribunal ought to have modified the relief by making the directions effective from the date of reference or from the date of the award instead of granting the benefit from the date their voluntary retirement became effective. This aspect is addressed by this Court and appropriate directions have been passed, in later part of Page 66 HC-NIC Page 66 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT this order.
22. In light of foregoing discussion and for the reasons mentioned and recorded above, it has emerged that the petitioner AMTS has failed to make out any ground against the conclusions and findings recorded by learned Tribunal with regard to the claimants' entitlement for pension, except so far as the effective date is concerned, i.e. the date from which the amount/arrears should be paid. For the reasons mentioned above, the direction as regards the effective date i.e. the date from which the pension amount/arrears should be paid deserves to be partly set aside and modified.
Therefore, the petitions are disposed of with following directions.
In the result, the impugned award and the directions passed by learned tribunal are required to be partly confirmed and partly modified inasmuch as the learned Tribunal's decision holding that the claimants are entitled and eligible for pension and allowing the demand for pension is confirmed and that part of the decision is not disturbed, however, the direction to pay the arrears from the date of voluntary retirement under the VRS cannot be sustained. The said direction is required to be, and deserves to be set aside. Therefore, the said direction is Page 67 HC-NIC Page 67 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT set aside and modified by clarifying that the claimants are entitled for pension, however, they would not be entitled for actual payment of pension from the date of voluntary retirement to the date of reference by appropriate government but they shall be entitled for payment of pension amount/arrears only from the date of reference by appropriate government.
It is further clarified that the claimants will be entitled for payment of pension in accordance with the formula prescribed under the Pension Scheme and the VRS (from the date of reference).
It is also clarified that it will be open to the petitioner AMTS to calculate the amount payable to the claimants in accordance with the provisions under the VRS and the Pension Scheme / Rules of AMTS and for calculating the pension amount, the petitioner AMTS may take into account such number of years of service as prescribed by/provided for by way of formula prescribed under its Rules.
It is also clarified that the claimants will be entitled for the said benefit only if the claimants are ready and willing to, and if they actually return the amount received from the petitioner AMTS by way of lump sum compensation or agree for adjustment against the amount to be paid towards pension/arrears. The claimants are Page 68 HC-NIC Page 68 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT given option on this count viz. either they may return entire amount received by way of lump sum compensation or the petitioner AMTS shall be entitled to adjust the amount already paid to them towards the arrears payable as per the direction in present order and the obligation to regularly pay the amount of monthly pension will commence on and from the date when full amount is adjusted. On the other hand, if the amounts paid to the claimants by way of lump sum compensation fall short of the amount payable in compliance of this order i.e. the amount/arrears payable from the date of order of reference by appropriate government till the date of the judgment, then, such amount - arrears will be paid by the petitioner AMTS within eight weeks from receipt of certified copy of this order.
The petitioner AMTS shall, thereafter, continue to pay pension to the claimants regularly every month in accordance with the provisions and formula under the VRS.
With aforesaid directions and clarifications, impugned award is partly set-aside and modified. The petitions are partly allowed to said extent. Rule made absolute to aforesaid extent. Orders accordingly.
(K.M.THAKER, J.) kdc/Suresh/Bharat Page 69 HC-NIC Page 69 of 70 Created On Wed Aug 16 08:33:37 IST 2017 C/SCA/1706/2014 CAV JUDGMENT Page 70 HC-NIC Page 70 of 70 Created On Wed Aug 16 08:33:37 IST 2017