Central Administrative Tribunal - Delhi
Surender Singh vs M/O Urban Development on 27 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1300 of 2017
This the 27th September 2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Surender Singh, aged 60 years, Group C
S/o Sh. Aflatoon,
Retired as Motor Lorry Driver (Regular),
From the office of Electric Division-7,
CPWD, R.K.Puram, New Delhi.
R/o Vill. & PO Bhoda Kalan,
Patti Devraj, Distt. Gurgaon (Har.).
....Applicant
(By Advocate : Shri Yogesh Sharma)
VERSUS
1. Union of India through the Secretary,
Ministry of Urban Development,
Govt. of India, Nirman Bhawan, New Delhi.
2. Directorate General,
Central Public Works Department,
Nirman Bhawan, New Delhi.
3. Dy. Director General (P), (North Zone),
CPWD, Nirman Bhawan, New Delhi.
.....Respondents
(By Advocate : Shri Ashok Kumar)
O R D E R (Oral)
By filing this OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-
"(i) That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the order dated 28.03.2017 (Annexure A/1) and directing the respondents to grant all the pensionary benefits to the applicant in old pension scheme which was applicable prior to 1.1.2004 after counting the service of the applicant from the date of initial appointment i.e. w.e.f.
1.9.1994 by way of extending the benefit of judgment dated 26.5.2015 in OA No.1047/2014 passed by Hon‟ble Tribunal, Chandigarh Bench with all the 2 consequential benefits with interest on all the retirement benefits including GPF.
(ii) Any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."
2. Brief facts of the case as enumerated in the OA are that the applicant was initially appointed as Motor Lorry Driver on Muster Roll/Work charge basis against the duly sanctioned post w.e.f. 1.9.1994 and the applicant was granted minimum of pay scale plus DA from the initial date of appointment.
2.1 The respondents have conducted a trade test in the year 2002 for the purpose of regularization of the services of the applicant and other similarly situated persons in which applicant was declared as passed vide Office Memorandum dated 10.10.2002 but the respondents taken almost four years time to complete the required formalities and lastly regularized the services of the applicant w.e.f. 11.12.2006 vide Order dated 27.7.2011.
2.2 Applicant further stated that below Rule 14 of the CCS (Pension) Rules, 1972, there is a provision of counting of service paid from contingencies with regular service and the applicant fulfilling all the conditions of that provision for counting his service from the date of his initially appointment and therefore, he is entitled for counting of his service w.e.f. 1.1.1994 for the purpose of pensionary benefits under the said Rules. 2.3 As the respondents regularized his services only w.e.f. 11.12.2006, that is why the respondents without considering the 3 past service of the applicant prior to 11.12.2006, applied only CPF Scheme in the case of applicant and has not granted any pensionary benefits under the said Rules.
2.4 Some similarly situated persons, who were appointed like the applicant and whose services were regularized along with the applicant, filed OA No.1047/2014 before the Chandigarh Bench of this Tribunal seeking the benefits of GPF-cum-pension Scheme after counting their past service prior to regularization and the said OA was allowed vide Order dated 26.5.2015 and the relevant part of the same reads as under:-
"7. Considering the ad idem between the parties, this OA is allowed. The impugned order dated 16.9.2014 stands quashed and the respondents are directed to take into account the period of service rendered by the applicants from their dates of appointment as indicated in para 2 of this order for grant of pension and they shall be covered under the Old Pension Scheme. No costs."
2.5 In compliance of the aforesaid Order of this Tribunal, the respondents vide order dated 19.10.2016 placed all the applicants in the said OA only in old pension scheme under CCS (Pension) Rules, 1972.
2.6 The applicant also submitted his representation for grant of similar benefits as has been granted to the similarly situated persons vide order dated 3.10.2016 and the applicant has also filed a legal notice through his counsel dated 3.1.2017 but when no reply was received by the applicant, he had filed OA 477/2017 before this Tribunal and the same was disposed of by this Tribunal vide Order dated 9.2.2017 with a direction to the respondents to duly consider the aforesaid legal notice and pass a speaking order. 4 2.7 In compliance of the aforesaid Order of this Tribunal, respondents have passed the order dated 28.3.2017 denied the claim of the applicant without considering any of the issues raised by the applicant in his legal notice which is impugned in the present OA.
3. Pursuant to notice issued to the respondents they have filed their counter reply in which they stated that the applicant was engaged as hand receipt basis as Motor Lorry Driver w.e.f. 1.9.1994. Subsequently, in pursuance to para 44 of the Hon‟ble Supreme Court‟s order dated 10.4.2006 in the matter of State of Karnataka vs. Uma Devi and DOP&T‟s OM No.49019/1/2006- Estt. C dated 11.12.2006, as one time measure, the department decided in consultation with MoUD & DOP&T to regularize the services in their respective categories w.e.f. 11.12.2006 of such irregularly appointed, who were duly qualified persons in terms of statutory recruitment rules for the post and who have worked for 10 years or more as on 11.12.2006. In view of above decision, the services of the applicant as Motor Lorry Driver was also regularized w.e.f. 11.12.2006 by issuing Office Order dated 27.7.2011. 3.1 The applicant was placed under temporary status. Since applicant‟s services as Motor Lorry Driver was regularized w.e.f. 11.12.2006, the applicant is not eligible for the GPF & Pensionary benefits under CCS (Pension) Rules, 1972.
3.2 The impugned order dated 28.3.2017 is a detailed and speaking order which clearly establishes as to how in view of para 44 of the Hon‟ble Supreme Court‟s order dated 10.4.2006 in the 5 matter of State of Karnataka vs. Uma Devi and DOP&T‟s OM No.49019/1/2006-Estt. C dated 11.12.2006 on the subject, applicant‟s services as Motor Lorry Driver was regularized retrospectively w.e.f. 11.12.2006 by issuing office order dated 27.7.2011. Therefore, there is no legal infirmity in the said impugned order. The order dated 26.5.2015 passed in OA No.1047/2014 by CAT, Chandigarh Bench has no applicability in the case of the applicant in view of the above position. However, applicant is not eligible for GPF and Pensionary benefits under CCS (Pension) Rules, 1972 as claimed by him.
3.3 In paras 17 & 18 of its judgment delivered on 23.8.2013 in Civil Appeal Nos.7328-7329 of 2013, the Hon‟ble Supreme Court observed as under:-
"17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
18. In State of T.N. v. Seshachalam,(2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:-
"....filing of representations alone would not save the period of limitation. Delay or laches is 4 (1977) 3 SCC 396 5 (1976) 3 SCC 579 6 (2011) 4 SCC 374 7 (1977) 6 SCC 538 8 (2007) 10 SCC 137 13 Page 14 a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."6
3.4 In view of the above observations of the Apex Court, OA deserves to be dismissed on the ground of delay and laches alone. 3.5 They further stated that since the applicant was continuously working with the department as M.L.D., he was considered for regularization. Department conducted trade test for the purpose and the applicant was declared pass in the trade test. The applicant was not found fit for regularization 12.07.2002 by the DPC for the post of MLD since he did not fulfill qualification as required under Rules. Hence, it is wrong that department took four years time to complete the required formalities (i.e. 10/2002 to 12/2006) and lastly regularized the service w.e.f. 11.12.2006. In fact the services of the applicant as MLD was regularized retrospectively w.e.f. 11.12.2006 by issuing Office Order dated 27.7.2011 in view of para 44 of the Hon‟ble Supreme Court‟s order dated 10.4.2006 in the matter of State of Karnataka vs. Uma Devi and DOP&T‟s OM No.49019/1/2006-Estt. C dated 11.12.2006 on the subject so he is entitled for getting benefit/counting of service w.e.f. 11.12.2006 only and not w.e.f. 1.9.1994. 3.6 They further contended that the decision dated 26.5.2015 in OA 1047/2014 of the Chandigarh Bench of this Tribunal is applicable to petitioners only. Hence, applicant is not entitled for getting the benefits of the decision dated 26.5.2015.
4. In the rejoinder, the applicant has reiterated the averments made in the OA and denied the contents of the reply filed by the respondents.
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5. During the course of hearing, counsel for the applicant submitted that the case of the applicant is squarely covered by the judgment delivered by the Chandigarh Bench of this Tribunal in OA No.1047/2014 decided on 26.5.2015.
5.1 Counsel further submitted that admittedly the applicant qualified the trade test in 2002 but when his services were not regularized, the applicant earlier filed OA 1634/2000 which was disposed of by this Tribunal vide Order dated 29.10.2001 with a direction to the respondents to consider the case of the applicant for regularization against the next available vacancies of Motor Lorry Driver. However, respondents considered his case for regularization but denied the same on the ground that he was not fit for regularization on 12.7.2002 by the DPC constituted for this purpose as the applicant does not fulfill qualifications as required under RRs. Counsel further submitted that while rejecting the representation of the applicant by impugned order which was passed in pursuance of the directions given by this Tribunal in earlier OA filed by the applicant, the respondents have not adverted on the issue of applicability of the said judgment of the Chandigarh Bench in the case of the applicant. However, they have merely stated in their reply that the said judgment is applicable in the case of the applicants therein only, which is clearly arbitrary and discriminatory and the same is also violative of Articles 14 and 16 of the Constitution of India.
6. Counsel for the respondents submitted that the applicant was engaged as hand receipt basis as Motor Lorry Driver w.e.f. 8 1.9.1994, in pursuance to para 44 of the Hon‟ble Supreme Court‟s order dated 10.4.2006 in the matter of State of Karnataka vs. Uma Devi and DOP&T‟s OM No.49019/1/2006-Estt. C dated 11.12.2006, and his services were regularized w.e.f. 11.12.2006 by issuing Office Order dated 27.7.2011. Since his services were regularized w.e.f. 11.12.2006, he is not eligible for the GPF & Pensionary benefits under CCS (Pension) Rules, 1972. The impugned order dated 28.3.2017 is a detailed and speaking order and there is no legal infirmity in the said order. The order dated 26.5.2015 passed in OA No.1047/2014 by CAT, Chandigarh Bench has no applicability in the case of the applicant in view of the above position.
6.1 Counsel further placed reliance on the judgment of the Hon‟ble Apex Court in Civil Appeal Nos.7328-7329 of 2013 decided on 23.8.2013, to submit that the instant claim of the applicant is barred by delay and laches.
7. Heard learned counsel for the parties and perused the material placed on record.
8. Before adverting to the issue in the present case, it is relevant to refer to the judgment of the Chandigarh Bench of this Tribunal, relevant part of which reads as under:-
"2. Averment has been made in the OA that the applicants were initially appointed as Motor Lorry Driver (Muster Roll basis, Work Charge) under the respondent No. 5 against the sanctioned posts on:-
a. Baldev Singh 28.12.1990
b. Ajay Kumar 15.10.1990
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c. Jugraj Singh 26.11.1990
d. Gurmeet Singh 21.07.1994
e. Jasbir Singh 27.09.1993
f. Dalbir Singh 07.12.1990
Applicants were granted minimum of pay scale plus DA from their initial date of appointment. The services of the applicants were regularized by the respondents on the post of Motor Trolley Drivers w.e.f. 11.12.2006 vide orders dated 27.7.2011. (Annexure A-2 colly.). After regularizing the services of the applicants, the respondents started deducting the CPF from salary of applicants under the New Pension Scheme in terms of Government of India DOPT letter No. 49014/1/2004- Estt (C) dated 26.04.2004 (Annexure A-3). Since the applicants were appointed between 1990 to 1994, therefore, they were required to be governed under CCS (Pension) Rules, 1972 and they are entitled to subscribe to GPF under Old Pension Scheme. The applicants submitted a representation in this regard but the same has remained without any response.
3. It is further averred that when the applicants did not find any response to their representations, the applicants served a Legal Notice dated 01.08.2014 (Annexure A-4) upon the respondents to switch over them to the Old Pension Scheme and grant them all the benefits under Old Pension Scheme like subscription of GPF etc. In reply to this Legal Notice, the respondent No. 5 vide letter dated 16.9.2014 (Annexure A-1) has rejected the case of the applicants for switch over to the Old Pension Scheme on the ground that the services of the applicants were regularized after introduction of New Pension Scheme dated 1.1.2004 and therefore, they are not entitled to the benefit of Old Pension Scheme. Hence this OA.
4. In the written statement filed on behalf of the respondents, facts of the matter have not been disputed. It has further been stated, however, that since the applicants were appointed between 1990 to 1994, but regularized on the basis of fresh joining report, medical check-up, Character Certificate, Qualification, Caste and Birth Certificate, all the staff will be covered under New Pension Scheme vide Ministry of Finance order dated 22.12.2013. Moreover, vide order of Ministry of Personnel, Public Grievances and Pension (Department of Personnel & Training) OM No. 49014/1/2004-Estt (C) dated 26.4.2004, it was decided that under the new pension scheme based on defined contributions, the length of qualifying service for the purpose of retirement 10 benefits has lost relevance. No credit of casual service, as specified in para 5(V), shall be available to the Casual Labourers on their regularization against Group „D‟ posts on or after 1.1.2004 (Annexure R-3). So, they cannot be taken in old pension scheme in reference to DOPT letter No. 49014/1/2004-Ess (C) dated 26.04.2004.
5. When the matter came up for consideration today, learned counsel for the applicants stated that he placed reliance on the following judgements:-
(i) OA No. 585/CH/2012 titled Jagmohinder Singh & Ors. Vs. UOI & Ors. decided on 18.4.2013 (Annexure A-5).
(ii) CWP No. 2371 of 2010 titled Harbans Lal Vs. The State of Punjab and Ors. decided on 31.08.2010 (Annexure A-6)
(iii) OA No. 2332/2010 titled Rameshwar Singh Vs. UOI decided on 02.12.2011 (Annexure A-7) and
(iv) OA No. 4147/2012 titled Birendra Singh & Anr.
Vs. UOI decided on 28.5.2014 (Annexure A-8).
6. Learned counsel for the respondents does not object to the submissions made by the learned counsel for the applicant.
7. Considering the ad idem between the parties, this OA is allowed. The impugned order dated 16.9.2014 stands quashed and the respondents are directed to take into account the period of service rendered by the applicants from their dates of appointment as indicated in para 2 of this order for grant of pension and they shall be covered under the Old Pension Scheme. No costs."
9. Having regard to the aforesaid and the facts of the present case, it transpires that the case of the applicant is similar to the applicants in the said OA which was decided by Chandigarh Bench of this Tribunal. However, benefit of the said judgment has been denied to the applicant only on the ground that he is not a party in the said OA. This ground is not sustainable in view of the catena of judgments of Hon‟ble Supreme Court wherein it has been categorically stated that it was not necessary for every person to 11 approach the court for relief and it was the duty of the authority to extend the benefit of a concluded decision in all similar cases without dragging every affected person to court to seek relief, would apply only in four circumstances: i) when the order is made on a petition filed in a representative capacity on behalf of all similarly situated employees; ii) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not; iii) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and iv) where the court expressly directs that the relief granted should be extended to those who have not approached the court.
10. It is an admitted fact that the aforesaid judgment of the Chandigarh Bench of this Tribunal has since been implemented by the respondents. However, the benefit of the same has not been extended in the case of the applicant only on the ground that he is not a party in the said OA and this is not sustainable in the eyes of law. Rather in the impugned order, the respondents have not adverted on the issue of applicability of the said judgment in the case of the applicant which was the main grievance of the applicant in his aforesaid legal notice and the same was directed to be decided by the respondents by passing a speaking order, as per the directions given by this Tribunal vide order dated 9.2.2017 in OA 477/2017, which was earlier filed by the applicant. 12
11. In view of the above, the impugned order dated 28.3.2017 is quashed and the respondents are directed to re-consider the case of the applicant for grant of old pension scheme benefits in the light of the judgment of the Chandigarh Bench in OA No.1047/2014 (Baldev Singh and others vs. Union of India and others) decided on 26.5.2015, as observed above, and as implemented in the cases of Baldev Singh and others. This exercise shall be completed within a period of two months from the date of receipt of certified copy of this Order.
12. The OA is allowed in above terms. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/