Central Administrative Tribunal - Ernakulam
K.P. Attakoya vs Union Of India on 1 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 949/2010
w i t h
Original Application No. 746/2011
Monday, this the 01st day of July, 2013
C O R A M
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. O.A. No. 949/2010 :
1. K.P. Attakoya, S/o. Muthu Kunji,
Aged 62 years,
WC Assistant Mason (Retd.), L.P.W.D, and
Residing at Kakothapura House,
Union Territory of Lakshadweep,
Kiltan Island : 682 558
2. P.S. Atherkoya, S/o. Abdulla, aged 61 years,
W.C.Beldar (Retd.), L.P.W.D. Sub Division,
Kiltan Island and Residing at Puthiyasurambi,
Union Territory of Lakshadweep,
Kiltan Island : 682 558
3. K. Mohammed, S/o. Abdulla, Aged 65 years,
Watchman (Retd.), Community Health Centre &
Residing at Kunnashada House, Kiltan Island,
Union Territory of Lakshadweep,
Agatti : 692 558 ... Applicants.
(By Advocate Mr. N. Unnikrishnan)
v e r s u s
1. Union of India, represented by
The Secretary to the Government of India,
Ministry of Personnel & Public Grievances,
Department of Personnel and Training,
New Delhi - 110 001
2. The Controller General of Accounts /
Central Pension Accounting Office,
Ministry of Finance, Department of Expenditure,
New Delhi - 110 001
3. The Administrator,
Union Territory of Lakshadweep,
Kavaratti - 682 555
4. The Director (Services),
Administration of U.T. of Lakshadweep,
Secretariate, Kavaratti - 682 555
5. The Secretary (Administration),
U.T. of Lakshadweep,
Secretariate, Kavaratti - 682 555
6. The Principal Accounts Officer,
U.T. of Lakshadweep, Kavaratti - 682 555
7. The Director, Directorate of Medical &
Health Services, Kavaratti - 682 555
8. The Superintending Engineer,
Lakshadweep Public Works Department (L.P.W.D),
Union Territory of Lakshadweep,
Kavaratti - 682 555 ... Respondents.
(By Advocate Mr. Sunil Jacob Jose, SCGSC for R1-2 and
Mr. S. Radhakrishnan for R3-7)
2. O.A. No. 746/2011 :
Chodath Cheriyakoya, S/o. Sayed Koya,
Aged 60 years, Peon (Retd.), L.P.W.D.
Sub Division, Andrott and Residing at
Chodath House, Union Territory of
Lakshadweep, Andrott Island - 682 551 ... Applicant.
(By Advocate Mr. N. Unnikrishnan)
v e r s u s
1. Union of India, represented by
The Secretary to the Government of India,
Ministry of Personnel & Public Grievances,
Department of Personnel and Training,
New Delhi - 110 001
2. The Controller General of Accounts /
Central Pension Accounting Office,
Ministry of Finance, Department of Expenditure,
New Delhi - 110 001
3. The Administrator,
Union Territory of Lakshadweep,
Kavaratti - 682 555
4. The Director (Services),
Administration of U.T. of Lakshadweep,
Secretariate, Kavaratti - 682 555
5. The Secretary (Administration),
U.T. of Lakshadweep,
Secretariate, Kavaratti - 682 555
6. The Superintending Engineer,
Lakshadweep Public Works Department,
Union Territory of Lakshadweep,
Kavaratti - 682 555
7. The Principal Accounts Officer,
U.T. of Lakshadweep, Kavaratti - 682 555
8. The Director, Directorate of Medical &
Health Services, Kavaratti - 682 555
9. The Assistant Engineer,
Lakshadweep Public Works Department,
Union Territory of Lakshadweep,
Andrott Island - 682 551 ... Respondents.
(By Advocate Mr. Sunil Jacob Jose, SCGSC for R1-2 and
Mr. S. Radhakrishnan for R3-9)
These applications having been heard on 18.06.2013, the Tribunal on
01.07.13 delivered the following:
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER In view of the similarity of the facts and common issues, these O.As were heard together and are disposed of by this common order.
2. All the applicants, who joined the Lakshadweep Administration as casual labourers, were granted temporary status with effect from 01.09.1993. The 1st applicant in O.A. No. 949/10 was given temporary appointment to Group-D post under the Lakshadweep Administration vide order dated 10.03.2005. He joined duty on 14.03.2005 as Group-D employee under the Lakshadweep Administration and retied on 30.11.2008. The 2nd applicant in the above O.A was regularised as a Group-D employee under the Lakshadweep Administration vide order dated 10.03.2005 and retired on 01.11.2009. The 3rd applicant in the said O.A was regularised as temporary Group-D employee under the Lakshadweep Administration vide order dated 07.04.2005 and retired from service on 30.09.2006. The applicant in O.A.No. 746/11 was regularised as temporary Group-D employee under the Lakshadweep Administration vide order dated 24.04.2008 and he retired on 30.06.2011. All the applicants are aggrieved by the denial of penesionary benefits to them under CCS (Pension) Rules, 1972. Hence they have filed these O.As for the following reliefs:
(i)Call for the records leading to the denial of pension and pensionary benefits to the applicants;
(ii)To declare that the applicants are entitled to pension and pensionary benefits;
(iii)To declare that the respondents are bound to count W.C. Service and 50% of the service rendered by the applicants as casual labourers with temporary status as qualifying service;
(iv)To declare that the applicants are entitled for pension under the provisions of CCS (Pension) Rules, 1972;
(v)To declare that after accepting equal deposit from employees and employer, denial of pension and benefits even under the new scheme by the respondents are bad in law;
(vi)To issue appropriate order or direction to the respondents to release necessary order granting pension and pensionary benefits to the applicants taking also qualifying service rendered by them as W.C. service and casual labourers with temporary status within a reasonable time;
(vii)To issue such other order or direction to the respondents to the interest of justice and fairness to the applicant and to grant the cost of this Original Application.
2. The applicants contended that they are entitled to pensionary benefits under the CCS (Pension) Rules, 1972, and are eligible for pension proportionate to the length of their service. They have a legitimate right of pension immediately after their retirement on 30.11.2008, 01.11.2009, 30.09.2006 and 30.06.2011 respectively.
3. The respondents in their reply statement submitted that the applicants are not entitled to any reliefs as prayed for as they had entered into regular service under the departments concerned after introduction of the new pension scheme. The new pension scheme stipulates that the scheme is applicable to all new entrants to the Central Government service except to Armed Forces, joining Government service on or after 01.01.2004. The 1st applicant in O.A. No. 949/10 entered into regular service in the department on 14.03.2005 and the 2nd applicant on 01.02.2009. The 3rd applicant became Group-D Watchman only after 07.04.2005. The applicant in O.A. No. 746/11 reported for duty on 29.04.2008 as Group-D employee and retired on 30.06.2011. The Government of India had withdrawn the old pension scheme with effect from 01.04.2004 vide order dated 07.01.2004 (Annexure R3(f) in O.A. No. 949/10). The scheme of General Provident Fund in respect of labourers in temporary status was withdrawn vide order dated 26.04.2004 (Annexure R3(e) in OA No. 949/10). As the regularisation of the applicants is made after 01.04.2004, they are not eligible for pensionary benefits as they will come under the contributory provident fund scheme. No credit of casual service specified in Para 5(v) of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993, is available to the casual labourers on their regularisation against Group-D posts on or after 01.01.2004 as specified in O.M. dated 26.04.2004. It was further submitted that the respondents had acted strictly in accordance with the orders and rules issued from time to time.
4. In the rejoinder statement filed by the applicants, it was submitted that the applicants were given the benefit of temporary status with all attendant benefits including the increments and protection of higher basic pay when they were appointed to the regular post of Group-D. Annexure R3(e) does not take away the benefit granted and enjoyed by them from 01.09.1993. As the applicants have not entered service on or after 01.01.2004, they are bound to be granted pension and pensionary benefits counting 50% temporary status service, under the provisions of CCS (Pension) Rules, 1972. There is nothing to show that the status of persons, like the applicants, who were granted temporary status are to be denied pension. Annexure R3(e) does not give alternate and effective measures to provide adequate benefits in lieu of pension which is denied to them now. The applicants have entered the service as far back as 1983 and granted temporary status as back as 01.09.1993. Since they entered the service prior to 01.01.2004 and enjoyed the benefit attached to Group-D post from 01.09.1993, they cannot be treated at par with the new entrants in Central Government service. The respondents have not granted pension under the old scheme or under the new scheme to the applicants who retired in 2006, 2008, 2009 and 2011 respectively.
5. I have heard Mr. N. Unnikrishnan, learned counsel for the applicants, Mr. Sunil Jacob Jose, learned SCGSC for respondents Nos. 1 and 2 and Mr. S. Radhakrishan for respondents Nos. 3 to 9 and perused the records.
6. The applicants were casual labourers in the employment of the Administration of Union Territory of Lakshadweep. They were conferred with the temporary status on 01.09.1993. As a result, they were eligible for the following benefits:
(i)Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group 'D' official including DA, HRA and CCA.
(ii)Benefits of increments at the same rate as applicable to a Group- employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for atleast 240 days (206 days in administrative offices observing 5 days week) in the year from the date of conferment of temporary status.
(iii)Leave entitlement will be on a pro-rata basis at the rate of one day for every 10 days of work, casual or any other kind of leave, except maternity leave,will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularisation. They will not be entitled to the benefits of encashment of leave on terminations of service for any reason or on their quitting service.
(iv)Maternity leave to lady casual labourers as admissible to regular Group-D employees will be allowed.
(v)50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
(vi) After rendering three years' continuous service after conferment of temporary status, the casual labourers would be treated on par with temporary Group-D employees for the purpose of contribution to the General Provident Fund, and would also further be eligible for the grant of Festival Advance/Food Advance on the same conditions as are applicable to temporary Group-D employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii)Until they are regularised, they would be entitled to productivity Linked Bonus/Ad-hoc bonus only at the rates as applicable to casual labourers."
Further, two out of every three vacancies in Group-D cadres in respondents' offices where they had been working, would be filled up as per the recruitment rules from amongst casual workers with temporary status.
7. Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993, which came into force on 01.09.1993, granted the benefits mentioned above to the applicants. The relevant benefit under consideration here is the reckoning 50% of service rendered under temporary status for retirement benefits after their regularisation. This benefit is a legally enforceable right accrued to them under the Grant of Temporary Status and Regularisation Scheme. This is a condition of their service as temporary status conferred casual employees. It cannot be altered to their disadvantage. The relevant part of the O.M. dated 26.04.2004 which takes away their right to retirement benefits on the basis of the length of qualifying service, is reproduced as under:
"(i) As the new pension scheme is based on defined contributions, the length of qualifying service for the purpose of retirement benefits has lost its relevance, no credit of casual service, as specified in para 5(v) shall be available to the casual labourers on their regularisation against Group 'D' posts on or after 01.01.2004.
(ii) As there is no provision of General Provident Fund in the new pension scheme, it will not serve any useful purpose to continue deductions towards GPF from the existing casual employees, in terms of para 5(vi) of the scheme for grant of temporary status. It is, therefore, requested that no further deduction towards General Provident Fund shall be effected from the casual labourers w.e.f. 01.01.2004 onwards and the amount lying in their General Provident Fund accounts, including deductions made after 01.01.2004, shall be paid to them."
8. The above O.M. assumes that as the casual labourers with temporary status are new entrants in the Government service on their regularisation against Group-D posts on or after 01.01.2004 and, therefore, the new pension scheme based on defined contributions is applicable to them. This assumption is not valid for the reason that the new pension scheme is mandatory only for the new recruits to the Central Government service from 01.01.2004 (except Armed Forces),as per notification dated 22.12.2003 (Annexure R3(a)). Those who are not new recruits are excluded from the purview of the new pension scheme. The old pension scheme continues for those who entered the service of the Government on or before 31.12.2003. It is not replaced by the new pension scheme. The new recruits are those who are recruited in accordance with the Recruitment Rules from 01.01.2004 onwards. The applicants are not new recruits and, therefore, the new pension scheme does not apply to them. Their pensionary service is to be reckoned from the mid point of their service as temporary status conferred employees upon their regularisation. Their regularisation is not new recruitment. Regularisation is not a method of recruitment. It regularises their irregular entry years ago into the employment of the Administration of Union Territory of Lakshadweep. Their entry was irregular as it was not in accordance with the Recruitment Rules. Upon their regularisation, 50% of their service under temporary status is to be counted for the purpose of retirement benefits. The mid point of their temporary status service is anterior to 01.01.2004. Hence, they are old recruits into the service of the Administration of Union Territory of Lakshadweep, who are governed by the old pension scheme which runs concurrently with the new pension scheme till the longest survivor who entered service on or before 31.12.2003 expires.
9. In the order dated 23.08.2011 in O.A. No. 571/2011, this Tribunal held as under :
"8........ Pension under the CCS (Pension) Rules, 1972 is applicable subject to fulfillment of minimum qualifying service. If the new pension rule has to apply, then, the commencement of qualifying service should be posterior to 1.1.2004. Where the commencement of qualifying service is anterior to 1.1.2004, it is the old CCS (Pension) Rules, 1972 which would apply and for being eligible to draw pension, conditions of minimum qualifying service as prescribed should be fulfilled. In the instant case, admittedly, both the applicants were granted temporary status as early as December 1995 and the period of temporary status is reckoned from that date till their regular appointment on 24.5.2006. Thus, half the temporary service, viz, 5 years and 3 months were to add to the period of regular service and thus for purpose of entitlement to terminal benefits, the date of regular service in this case should be deemed from February 2001 itself ( 5 years 3 months prior to 24.5.2006). As such, both the applicants are entitled to pension subject to fulfilment of their qualifying service under the CCS (Pension) Rules, 1972.
9. In view of the above, the O.A is allowed. Annexure A- 1 order is quashed and set aside. Respondents are directed to verify the records of the 1st applicant and work out his qualifying service and subject to fulfillment of minimum qualifying service for the purpose of grant of pension, she shall be paid the pension and other terminal benefits on the basis of CCS(Pension), Rules, 1972.
10. Subject to fulfillment of the conditions prescribed in the pension rules, necessary action to issue PPO etc should be undertaken on priority basis and suitable orders shall be passed and pension granted to the 1st applicant within a period of three months from the date of communication of this order. The entitlement of pension shall be from the date of the 1st applicant's superannuation. As regards the 2nd applicant, as and when the said applicant superannuates, his case for pension shall be considered in accordance with CCS (Pension) Rules, 1972".
10. In the order dated 02.12.2011 in O.A. No. 2332/2010, Rameswar Singh vs. Union of India and Others, the Principal Bench of this Tribunal held as under:
"9. We have heard the learned counsel for the parties. As stated earlier, this OA has been filed by the applicant seeking a direction to the respondents to quash the impugned communication dated 16.3.2010 holding that the New Pension Scheme introduced vide DOPT letter dated 26.4.2004 is applicable to him by virtue of his being granted substantive appointment in Group 'D' post of Peon by regularization in terms of this Tribunal's order dated 31.10.2005. Admittedly, the applicant was initially engaged as daily wager w.e.f. 23.5.1989 and he was conferred with temporary status w.e.f. 1.9.1993 by operation of law as per DOP&T OM dated 10.9.1993 followed by substantive appointment in Group 'D' post by regularization w.e.f 15.6.2007. As such he has acquired certain legal right under the DOPT OM dated 10.9.1993 which includes counting of 50% service rendered as causal labourer with temporary status as qualifying service towards pension. The Hon'ble High Court of Andhra Pradesh in the matter of General Manager, South Central Railway Rail Nilayam Secunderabad AP & Another Vs. Shaik Abdul Khader, ATJ 2004 (2) 23, it has been held as under:
"Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on the regular service carries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted."
10. There is also a decision of Mumbai Bench of this Tribunal in the case of Vinayak Balkrishan Keer Vs. Union of India & Others, ATJ 2003 (3) 593 on the same issue. Again this Tribunal rendered judgment in OA-1195/2006, Umesh Singh & Others vs. Union of India & Others, decided on 30.11.2006 following the order of the Coordinate Bench of this Tribunal in OA-122/2005 & OA-152/2006, Giriraj Sharma and Another (supra) wherein it was held that the causal labourer with temporary status who had rendered continuous service of three years after conferment of temporary status would continue to be entitled to get benefit under that scheme and OM dated 26.4.2004 shall not be applicable to them. The order of this Tribunal In OA-1195/2006, Umesh Kumar & Others vs. Union of India & Others was challenged before the Hon'ble High Court of Delhi vide WP (C) No.2294/2007 but the same was dismissed by order dated 30.3.2007. The issue attained finality as the respondents have implemented the directions contained in the said order/judgment.
11. In view of the above position, we have no hesitation to allow this OA. Consequently, the impugned letter Annexure A-1 dated 16.3.2010 is quashed and set aside. We also direct the respondents to apply the provisions of CCS (Pension Scheme) 1972 in respect of the applicant. They are also directed to continue to extend the benefits under the GPF Rules to the applicant and deduct the monthly subscription regularly and without any interruptions. Aforesaid directions shall be complied with by passing appropriate orders under intimation to the applicant within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs."
(emphasis supplied)
11. In the order dated 13.03.2013 in O.A. No. 853/2012, this Tribunal held as under :
"The issue involved in this case is no longer res-integra. When a person was appointed as casual labourer as per the scheme prevalent in the nineties, he was entitled to temporary status after completion of 3 years of casual labour service. Again after 3 years of temporary status, he is to be treated at par with temporary Group-D. On regularization, half the service rendered as temporary status casual labour and full service rendered for the period he is treated at par with Group-D employee shall count for reckoning the qualifying service for pension purposes. The above has been held in many cases including OA No.418/12 and OA No.375/12. In the instant case, the applicant was engaged as casual labourer and was granted temporary status with effect from 01.01.1996. Again, after 3 years of temporary status, he was treated at par with temporary Group-D employee w.e.f. 01.01.1999 and w.e.f. 01.01.2005, his services were regularized. Thus his qualifying service reckons from 01.01.1996 onwards as herein:-
a) From 01.01.1996 to 31.12.1998 - 1 year and 6
months. (Half the total period).
b) From 01.01.1999 to 31.12.2004 - 6 years.(Full).
c) From 01.01.2005 till the date of retirement - Full
service.
If the above period is reckoned, the service of the applicant dates back to July 1997 (7 = years prior to 01.01.2005).
2. In view of the above, the applicant should be considered as one who is governed by the earlier Pension Scheme in force prior to 01.01.2004."
12. In W.P.(C) No. 12690/2009 & C.M. No. 13359/2009, Hon'ble High Court of Delhi upheld the decision of the Principal Bench in T.A. No. 444/09, Dalip Kumar vs. Union of India and Another. The operative portion of the said judgement dated 27.01.2010 is reproduced as under:
" The scheme is applicable to all new entrants to the Government service, however, it does not take away the rights of old entrants prior of 31.12.2003. In the facts and circumstances, on the plea of the petitioner, the order of the Tribunal directing the petitioner to treat the applicant covered under CCRS Pension Scheme cannot be faulted. There is no illegality or irregularity in the order of the Tribunal dated 7th July, 2009 requiring any interference by this Court. The Writ Petition is, therefore, dismissed."
13. Thus as per settled law, for the purpose of entitlement to terminal benefits, the date of regular service of the applicants will be from the mid point of their service as temporary status employees
14. Para (v) and (vi) of the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993, shows beyond doubt that the scheme is deeply and irrevocably rooted in the pension scheme that existed at the time of its formulation. It cannot be plucked out and transplanted in the new pension scheme without mutilating it beyond recognition. Para (v) of the Scheme is the most significant part of the Scheme; without it, the Scheme is meaningless for the casual labourers with temporary status. Para (vi) grants them parity with Group-D employees,after 03 years of continuous service with temporary status, for the purpose of contribution to the General Provident Fund.
15. The right of the temporary status conferred casual labourers to reckon 50% of their service under the temporary status for pensionary benefits under the benevolent scheme of 1993 cannot be extinguished arbitrarily. Arbitrariness on the part of the executive in a democratic set up is illegal. The O.M. dated 26.04.2004 is arbitrary in as much as it takes away the vested right of the temporary status conferred casual labourers without giving any valid reason and without giving a suitable compensation for what it takes away, as it does not take into account that the new pension scheme is applicable to new recruits only and that the temporary status conferred casual labourers are not new recruits. The viciousness of the arbitrariness on the part of the respondents in bringing the applicants under the new pension scheme on the basis of the O.M. dated 26.04.2004 comes out when they are not given the benefits even under the new pension scheme, years after their retirement. This points out that the O.M. dated 26.04.2004 was issued without due consideration of relevant aspects.
16. There is no direct challenge to the O.M. dated 26.04.2004 in this O.A. But, as it is an impediment in the way of the respondents to dispense justice to the temporary status conferred casual employees, it has to be, in the interest of justice and fair play, set aside. It is ordered so.
17. In the result, the O.As are allowed as under. It is declared that the applicants are entitled to pension and pensionary benefits under the CCS (Pension) Rules, 1972 and to reckon 50% of the service rendered by them as casual labourers with temporary status as qualifying service for pension. The respondents are directed to issue appropriate orders granting pension and pensionary benefits, including the refund of the deposits collected from them with interest at the rate applicable to GPF, as per the CCS (Pension) Rules, 1972 and make payment accordingly to the applicants within a period of three months. No costs.
(Dated, the 01st July, 2013) (K. GEORGE JOSEPH) ADMINISTRATIVE MEMBER cvr.