Central Administrative Tribunal - Kolkata
Sudhanya Mallick vs Eastern Railway on 18 April, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL Co ye KOLKATA BENCH, KOLKATA Eg Date of Order: 18.04.2022 O.A. No. 350/270/2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member In the matter of : Sudhanya Mallick, Son of Sri Narendra Nath Mallick, aged about 49 years, working as Safaiwala under SM/CWLE, residing at Village- Naunpara, P.O.- Nona Chandan Pukur, Barrackpore, Kolkata, Pin- 700122, Mob. No.- 9002026957. Email- [email protected] beteeeees Applicant -Versus- 1. Union of India through the General Manager, Eastern Railway, Fairlie Place, Kolkata -- 700001. 2. The Chief Personnel Officer, Eastern Railway, Fairlie Place, Kolkata -- 700001. 3. ° The Sr. Divisional Personnel Officer, Eastern Railway, Howrah, PO+PS Howrah -- 711101. A, The Secretary to . the Government of India, Ministry of Personnel, Public Grievances and ' Pension, Department of Personnel and Training, North Block, New Delhi -- 110001. keeaees Respondents For The Applicant(s): Mr. A. Chakraborty; Counsel For The Respondent(s): Ms. D. Ghosh Dastidar, Counsel ORDER(@ORAL Per: Ms. Bidisha Banerjee, Member (J)
Heard Ld. Counsels for both sides.
2. This application has been preferred to seek the following relief:
"fa) An order do issue directing the respondent nos.
Land 2 to issue directions ta the. Competent Autharity fo. grant scope af switching over te Ok Pension Scheme-in favour of the applicant on immediate basis for extending and effecting coverage of his case under Central Services (Pension}Rule 1972 in place of National Pension System at an earliest.
{8} To-graat Costs and incidentals.
{fe} Any other order er orders as the Hon'ble Tribunal deenis fir ond proper."
This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section B of the Aduiinistrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal with the consent of both the parties.
So The applicant herein had apphed against a doint Employment Notice bearing ne. ER/V/2001 SPL by the Eastern Railway for which he appeared in the Written test, as well as in PET, in the month of d uly and December respectively in the year 2008, The applicant was thereafter declared successful and the selection process was completed before O1.01.2004 when the Qld Pension Scheme was in effect, However, he was offered appointment only after 01.01.2004, ie. when the New Pension Scheme came into effect, A. At hearing, Ld. Counsel for applicant would vociferously argue that, sinee the vacancies in question arose before the notification was issued with an implied promise of coverage under old rules, and, as the selection was completed before 01.01.2004, i.e. before the introduction of New Pension Scheme (NPS in short) of 01.01.2004, but the orders could only be issued after OLUL2004 on account of delay caused by the concerned authorities, his client should be covered by the Old Pension Rules of 1972, in terms of the DOPT notification dated 17.02.2020 itself.
Further in support, Ld. Counsel would cite the decision of the Hon'ble High Court at Delhi in WP (C) No. 2810/2016 in the case of inspector Rajendra Singh & Ors. vs. UOT & Ors. renderad on 27.03.2017 wherein the petitioners who were recruited after OL.OL. 2004, sgaingt vacancies that occurred before 01.01.9004 were declared as eminently - entitled to be covered by the Old Pension Rules and that bringing them into the ambit of New Pension Scheme of 2004 in bad in law.
Ld. Counsel for applicant would also place the decision of Hon'ble Apex Court in the case of UOT Vs Shabad Prakash Punia SLP {Q) se No, 7878/2021 and batch cases where the petitioneis who had applied pursuant to the notification dated September, 2003 and June, 2008 for the post of Constable/QD in Central Armed Police Forces and Suh- Inspectors through Staff Selection Commission, and had qualified in the said examination of 2003, sought for benefits under Old Pension Scheme under the CCS (Pension) Rules, i3'2, whereas, the New Contributory Pension Scheme that was introduced by a notification dated 22nd December, 2008, and implemented with effect from Ist danuary, 2004, was apphed.
Hon'ble Court found that the batch mates of the most of the petitioners have been given the benefits of Old Pension Scheme under various judgments passed by the Court as under:
{i} Patil Gopal Babulal & Ors. vs, Union of India & Ors, W.P. {C) Li646/2018;
Gi} Tanaka Ram & Ors. vs. Union of India & Ors, 2019 {i74) DR] 146 {DB};
(i) Shyam Kumar Choudhary and Ors. vs, Union of India being WLP. (C ) No. 1358 of 2017 and 4
(iv) Nira] Kumar Singh & Ors. vs. Union of India & Ors.,, WE, (C } No. 13129 /2049, The Hon'ble Court therein held as under
"8. The issue in the present batch of matters is ne longer ras integra. Consequently, the request for additional time te file counter-affidavit is dectinel , in the case of certain constables of the BSF, this Court fv its judgment dated 128 - February, 2019 in Tanaka Ram feupra) adlewed the praver af those. Pertioners ag permitted them to aval af the benefit af the Old Beasion Scheme. Ib was held thar the oetion £0 coatique the (Nd Peasian Scheme shoul be extended to all thase wha hes bean selected in the amination conducted in 2003, but were issued call levters ony in fanuary ar february, 2004, f¢ 1s also pertinent to mention that the Respondents agurieved by the did judgment fled an SLP bearing No, Z5228/2019 before the Apex Court. The said SLP has been dismissed by the Supreme Court vide order dated 02 September, 2018.
10. This Court in Shyam. Ruenar Choudhary and Ors. vs. Union of Frilia being WRLC} No. 1988 of S017 atlowed similar petitions vide judgment dated G9" April, 2019 aueinst which the Respondents had again filed SLP bearing ne. 31539/2029 which was again dismissed on 27° Sentember, 2019. The Respondents thereafter chose to fle a review petition bearing no. 2186/2020 befiere the Apex Court in the said matter and the said Review petition wes alsa dismissed on merits vide order dated 24° November, 2020. ai 'allowing the judgment of Shiva Kumar Choudhary fsupra}. the learned predecessor DNvision Bench in Nira Kumar Singh and Ors. Ys: Union of india & Ors, WLP(C} No. 131429/2019 granted similar benefit to 17 petitioners who had applied te the post af Sub-inspestar in Central Police Ongausations pursuant to an advertiventent dated 218 fime, 2003 even when the written examination and physical efficiency test were held in November, 2003, medical examination was Aeld in faunry-februany, 2008 and fina? resudt was declared in May, 2004. The said 17 petitioners: were &sued affer af appointment of G2"? june, 2008 aad on accepting the same, the appointment Jetter wes issued on 14 fal, S005 for joining the Sashastra Seema Bal, 2 Anather Coordinate Bench vide judgment dated @6% November, 2020 ta WBC) No. 6348 af 2020 as well ax 698972020 was pleased ta allow the said petitions for grant of Old Pension Scheme by followin g the Judgment in Shyam Kumar Choudhary fsupray.
nt, ete, Renae of e Ss TA, i Having regard to the fact that in the present batch of cuses ise the guvertisement dnotitcation wos fexusd in Seprember, 2007 and duane 2003 he unor coming into force of the present conmriinitory peasion schame gi s2k" December 2603, fis Court is of the vlew that setitioners cannot be deprived of the benefit of the Old Pensien Scheme, , ié. This & more so when the betchmates af the petitioners.are getting this benefit under various judaments passed by this Court ES, For the ahove reasons, the petitianers are allowed. Respondents are directed ty extend the benefit of OMe Pension Scheme to enech of these Petitioners and pass conmegwential orders within a period of eight weeks from today
16. Accordingly, the writ petitions adieng with pending applications stand disposed ap"
The decision was rendered on 15.01.2021 by the Hon'ble High Court at New Delhi and the decision in one of such. Writ Petitions bearing No. WP (C)9252/2020, was assailed before the Hon'ble Apex Court in SLP No. 7373/2021 but the SLP was dismissed on 09.07.2021, 'a a. Therefore, Ld, Counsel for the applicant would vacifexously contend that the issue has attained a finality that, where the vacancies arose and the notification to fill up vacancies was published. befere 01.01.2004, the recruiiment process was also initiated as also the results were published prior to 01.01.2004, but the appointment letters could be issued only after 01.01.2004, the incumbents would still be gaverned by the Old Pension Rules of 1972, as in the decisions quoted supra.
La. Counsel would also refer to the judgment of this Tribunal in O.A. 1815 of 2021 (Prem Kumar Vs SE Railway) and analogous matters which is taken on record.
6. Ld. Counsel for respondents would fairly agree that the matter ean be remanded baek to the authorities for a fresh consideration in the light of the decision in Inspector Rajendra Singh & Ors. vs. UOI & Ors., as well as in Shabad Prakash Punia & Ors. vs. TOL & Ors. referred to supra.
Therefore, the instant O.A. is hereby be disposed of with a direction upon the respondent authorities to consider the representation of the applicant dated 19.01.2021 (at Annexure AB to the O.A) and to addvess the grievance of the applicant in the light of the DoPT OM. dated 17.02.2020, as well as, the decisions cited supra and to pass an appropriate order within 3 months from the date of reeeipt of a copy of this order, 7 The O.A,, accordingly, stands disposed of. No casts. (Bidisha Banerjee) Member (9) tH