Rajasthan High Court - Jaipur
The Union Of India vs R.N. Mishra S/O Late Shri G.N. Mishra ... on 6 April, 2023
Bench: Pankaj Bhandari, Anil Kumar Upman
[2023/RJJP/006288]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 18908/2022
1. The Union Of India, Through Its Secretary, Department Of
Pension And Pensioners Welfare Ministry Of Personnel, Pg
And Pension, 3Rd Floor, Lok Nayak Bhawan, New Delhi.
2. The Secretary, Department Of Legal Affair, Ministry Of
Law And Justice, 4Th Floor, Shastri Bhawan, New Delhi.
3. The Income Tax Appellate Tribunal, Through Its President,
4Th Floor, Old Cgo Building, 101 Maharshi Karve Marg,
Mumbai.
----Petitioners
Versus
R.N. Mishra S/o Late Shri G.n. Mishra, Aged About 67 Years, R/o
Rail Vihar 1, Vidhyadhar Nagar, Sector 9, Jaipur (Raj.). Earlier
Working As Senior Private Secretary, Income Tax Appellate
Tribunal, Jaipur.
----Respondent
For Petitioner(s) : Mr. Ashish Kumar with
Mr. Shubankit Bhatnagar
For Respondent(s) : Mr. Amit Mathur
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
JUDGMENT
06/04/2023
1. Challenge in this writ petition is laid to the judgment dated 02.09.2022 passed by Central Administrative Tribunal, (for brevity "Tribunal") whereby Original Application ('OA') filed by the respondent-applicant has been allowed and the petitioners were directed to treat the qualifying service rendered by the respondent-applicant from 18.11.2002 to 31.05.2015 for the purpose of pension. It was also directed that the respondent shall (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (2 of 12) [CW-18908/2022] be allowed pension and other pension related benefits including commutation of pension, gratuity, leave encashment etc. The entire exercise was directed to be carried out by the petitioners within a period of eight weeks from the date of receipt of certified copy of the order.
2. Factual matrix of the case is that the respondent-applicant was initially appointed in UPTRON India Ltd. (A UP Govt. Undertaking) and was posted as Executive Officer (Personal & Administration), Lucknow. He performed his duties there from 15.09.1983 to 17.11.2002 and during the said period, Contributory Provident Fund ('CPF') was deducted from his salary. He was relieved to join as Private Secretary in Income Tax Appellate Tribunal (for short 'ITAT'), Jaipur on deputation basis vide order dated 15.11.2002. He joined ITAT, Jaipur w.e.f. 18.11.2002 for three years on deputation. As per his last pay certificate of UPTRON dated 16.11.2002, his pay was protected and he was allowed the same pay scale in ITAT, which he was drawing at UPTRON. He was permanently absorbed w.e.f. 18.11.2005 in ITAT vide order dated 26.10.2005 and was allowed revised pay scale of Rs.6500-200-10500/-, which was the corresponding pay scale that he was drawing earlier. He was also promoted to the post of Senior Private Secretary from Private Secretary vide order dated 07.09.2006. The UPTRON did not pay benefits like CPF, earned leave and gratuity to respondent. He submitted representations to the ITAT to either pay or transfer his leave, salary, contribution & CPF contribution (employer share) but no efforts for the same were done by ITAT to contact UPTRON for (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (3 of 12) [CW-18908/2022] transfer of his dues. He was also not paid any deputation allowances by the ITAT. He attained the age of superannuation from ITAT on 31.05.2015. During his service, UPTRON India Ltd. had informed ITAT that all employees of UPTRON have been allowed benefits of 5th Pay Commission who were on deputation in other bodies of State Government. Before attaining age of superannuation, the respondent had submitted a detailed representation to the petitioner Department regarding his length of qualifying service for the purpose of pension and pay fixation. It is the case of the respondent that when an employee is sent on deputation in a department and subsequently his services are absorbed on permanent basis then he is entitled for the benefit of those services.
3. The services of ITAT are governed by CCS (Pension) Rules, 1972 and as per Rule 13, qualifying service of a government servant shall commence from the date he takes the charge of the post to which he was first appointed either substantially or in an officiating or temporary capacity. Thus, the services rendered by the applicant before his permanent absorption from 2002 to 2005 shall be counted as qualifying services for the pension purpose. Since on the representation filed by the petitioners, no action has been taken, the respondent approached the Tribunal by way of filing OA No.545/2016 and the same was disposed of by the Tribunal vide order dated 19.07.2016 directing the petitioners to decide such representation(s). Thereafter, the petitioners vide order dated 24.10.2016 rejected the representations of the applicant relying upon OMs dated 13.09.1996 and 04.07.2016. (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (4 of 12) [CW-18908/2022]
4. Being aggrieved of the order dated 24.10.2016, the respondent-applicant again approached the Tribunal for redressal of his grievances by way of filing OA No.800/2016 (R.N. Mishra vs The UOI & Ors.). Reply to the OA was filed by the petitioner No.3 - ITAT wherein it was averred that the respondent was appointed as Private Secretary (PS) on deputation basis for a period of three years w.e.f. 18.11.2002 in ITAT, Jaipur Bench, Jaipur. On successful completion of deputation, he was absorbed in ITAT as PS w.e.f. 18.11.2005 and he retired at the age of superannuation on 31.05.2015. It was averred in the reply that the pending dues of the respondent like CPF, EL Encashment and Gratuity amounts for the services rendered with the previous employer i.e, UPTRON India Ltd. from 18.09.1983 to 17.11.2002 were neither demanded by ITAT nor transferred by UPTRON India Ltd. to ITAT. It was further averred that the Under Secretary to Government of India, Ministry of Pensions, Department of Pension & Pensioners vide OM dated 04.07.2016 considered the representations of the applicant along with such similarly situated officers and did not consider the request of the respondent and rejected the same. The respondent- applicant was informed about the same vide order dated 24.10.2016. In the reply, reliance was placed upon the order dated 30.07.2016 passed by CAT, Ernakulam Bench in the case of K.Pushparajan vs. The President, ITAT & Ors. (OA No.180/0153/2017).
5. On the basis of the pleadings and documents placed on record and after hearing the arguments advanced by the counsel (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (5 of 12) [CW-18908/2022] representing the UOI, the Tribunal vide order dated 02.09.2022 allowed the Original Application filed by the respondent-applicant in the above terms, against which the petitioner UOI has filed the instant writ petition.
6. Learned counsel for the petitioners submits that the Tribunal has committed serious error of law and facts while allowing the OA filed by the respondent-applicant. He further submits that in terms of the Office Memorandum dated 04.07.2016, the services rendered by the employees of PSU on deputation in ITAT cannot be counted as qualifying service for the purpose of pension benefits. He further submits that the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Old Pension Scheme") was in force till 31.12.2003 and the respondent was not appointed in the ITAT on regular basis till that time and he was working on deputation. The National Pension System (hereinafter referred to as "NPS or New Pension Scheme" came into force w.e.f. 01.01.2004. The respondent-applicant came to be absorbed permanently in ITAT as PS w.e.f. 18.11.2005 and retired at the age of superannuation on 31.05.2015. Thus, the respondent did not complete minimum qualifying service for pension. The respondent was not absorbed till 31.12.2003 therefore, old pension scheme is not applicable on him and from absorption to the retirement he did not complete qualifying service and more so made no contribution for pension and therefore, he is not entitled to pension. He further contends that the Tribunal has committed error in relying upon the judgment passed by Division Bench of this Court in the case of UOI & Ors. vs Sushil Kumar Tiwari & (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (6 of 12) [CW-18908/2022] Ors. (D.B. Civil Writ Petition No.4799/2013, decided on 20.03.2014) as the same was passed in different factual matrix and does not cover up the controversy involved in the case. To buttress his contentions, learned counsel for the petitioners has relied upon the judgment passed by Hon'ble Supreme Court in the case of the State of Bihar & Ors. vs Rajmati Devi & Ors. :
[2022] 3 SCR 284 and Delhi High Court's judgment in the case of Rakesh Kumar Verma vs Jawahar Lal Nehru University & Anr. (LPA No.159/2018), decided on 03.05.2019.
7. Per contra, learned counsel for the respondent-applicant supported the impugned judgment and submitted that the Tribunal has considered each and every aspect of the matter and rightly held that the services rendered on deputation by the respondent in the petitioner Department should be counted as qualifying service for the purpose of pension benefits. He further argued that the pension is property within the meaning of Article 300-A of the Constitution of India and such right cannot be taken away merely on the basis of administrative instructions. It was also submitted by him that the respondent-applicant who is presently aged about 67 years has been deprived from fruits of successful litigation and has been unnecessarily dragged in further round of litigation for which, appropriate cost should be imposed upon the petitioner.
8. We have given our thoughtful consideration to the submissions advanced by counsel for both the parties and gone through the material available on record.(Downloaded on 11/11/2023 at 04:50:40 PM)
[2023/RJJP/006288] (7 of 12) [CW-18908/2022]
9. From bare perusal of the record, it appears that the Office Memorandum dated 13.09.1996 does not cover the services rendered by Central Government employee in public sector undertaking or services rendered by an employee in public sector undertaking under the Government for the purpose of pension. Further this office memorandum is not related to counting of services rendered on deputation basis and subsequent absorption. In the present case, the respondent-applicant has not claimed that the services rendered by him prior to his deputation in ITAT should be taken into consideration for the purpose of pension. The subsequent Office Memorandum dated 04.07.2016 is basically based upon Office Memorandum dated 13.09.1996, so the petitioners were not justified in rejecting the claim of the respondent-applicant on the premise that the services rendered by him were prior to the date of absorption i.e, 18.11.2005. Therefore, the Tribunal has not committed any error in quashing the Office Memorandum dated 04.07.2016. Same view was taken by Coordinate Bench of this Court in case of UOI & Ors. vs Sushil Kumar Tiwari & Ors. (supra) wherein it was held as below:-
"In our opinion, the learned Tribunal considered the prayer of applicant for granting relief of absorption w.e.f. initial date of appointment in accordance with the aforesaid Official memo dated 27.03.2001 and said memo applies to the case of the applicant for the purpose of absorption in the Income Tax Department. In our opinion, the finding given by the Tribunal for granting relief of absorption to the respondent employee w.e.f. initial entry into the service with all consequential benefits does not suffer from any perversity or illegality..."(Downloaded on 11/11/2023 at 04:50:40 PM)
[2023/RJJP/006288] (8 of 12) [CW-18908/2022]
10. As per Rule 3(q) of Central Civil Services (Pension) Rules, 1972, 'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible. Rule 13 of the said Rules also provide that qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either subsequently or in an officiating or temporary services is followed without interruption by substantive appointment in the name or another service or post. Rule 14(1) of the said Rules, provides that the service of a Government servant shall not qualify unless his duties and pay are regulated by the Government, or under condition determined by the Government. Rule 14(2) of the said Rules, provides that for the purpose of sub- rule (1), the expression "Service" means service under the Government and paid by that Government from the Consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. The aforementioned provisions of Central Civil Services (Pension) Rules 1972 apply in the case of the respondent-applicant also. The services rendered by the respondent-applicant while on duty i.e., from 18.11.2002 in ITAT shall be taken into account for the purpose of pensions and gratuities. The qualifying service of the respondent-applicant shall commence from the date he takes charge of the post to which he is first appointed i.e, 18.11.2002 in ITAT. The respondent-applicant was being paid by the Government from the Consolidated Fund of India. Therefore, the Tribunal rightly held that the qualifying (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (9 of 12) [CW-18908/2022] services of the respondent-applicant will commence from the date he took charge of the post to which he was first appointed i.e, 18.11.2002 on the post of Private Secretary (PS) on deputation basis in the ITAT and the said date is earlier then 01.01.2004 which is the cut off date of New Pension Scheme.
11. So far as the judgment relied upon by counsel for the petitioners are concerned, we are of the view that these judgments do not cover the controversy involved in the present case. In the case of State of Bihar & Ors. vs Rajmati Devi & Ors (supra), the issue was related to entitlement of new pension scheme but in the present case, the controversy is related to absolute denial of pension on the premise of non-fulfillment of qualifying service. Further, in the case of Rakesh Kumar Mehra (supra), the issue was related to premature repatriation to parent department which was found logically sound and did not suffer from malafide. In our considered view, these judgments are not helpful to the petitioners in any manner. While allowing the Original Application, the learned Tribunal has considered each and every aspect of the controversy involved in this case and we also do not find any good ground to take a different view.
12. Vide Constitution (44th Amendment) Act, 1978, the Right to Property no longer remained a fundamental right but it is still a constitutional right as provided under Article 300-A of the Constitution of India. Right to receive pension has been treated as Right to Property and no one can be deprived of property save by authority of law. The Hon'ble Supreme Court in the case of State (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (10 of 12) [CW-18908/2022] of Jharkhand & Ors vs Jitendra Kumar Srivastava & Anr. :
2013 (0) AIR (SCW) 4749, while dealing with a question whether the State Government can withdraw a part of pension and/or gratuity during pendency of departmental enquiry/criminal proceedings in absence of any provisions under the pension Rules, held as under:-
"14. Article 300-A of the Constitution of India reads as under:
"300-A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
13. In case of Prabhu Narain v. State of U.P. reported in (2004) 13 SCC 662, the Hon'ble Apex Court has held as under:-
"No doubt pension is not a bounty, it is a valuable right given to an employee, but in the first place it must be shown (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (11 of 12) [CW-18908/2022] that the employee is entitled to pension under a particular rule or the scheme, as the case may be."
14. In case of U.P. Raghvendra Acharya v. State of Karnataka reported in (2006) 9 SCC 630, the Hon'ble Apex Court held as under:-
"25.- Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on the date of retirement."
15. In Pepsu Road Transport Corporation v. Mangal Singh & Ors. reported in (2011) 11 SCC 702, the Hon'ble Apex Court has held as below:-
"To sum up, we state that the concept of pension has been considered by this Court time and again and in a catena of cases it has been observed that the pension is not a charity or bounty nor is it a conditional payment a solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for the past services. It is a social security plan consistent with the socio-economic requirements of the Constitution when the employer is State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated Government servant. It is a right attached to the office and cannot be arbitrarily denied."
16. The respondent-applicant is running from pillar to post and is in corridors of the Court for redressal of his grievances for the last seven years. He has won the legal battle but still he is deprived of the fruit of successful litigation. While allowing the Original Application filed by the respondent-applicant, the Tribunal directed the petitioners to grant pension and other related benefits within a (Downloaded on 11/11/2023 at 04:50:40 PM) [2023/RJJP/006288] (12 of 12) [CW-18908/2022] period of eight weeks but instead of granting such benefits to the respondent-applicant, he has been unnecessarily dragged in further litigation by filing this merit-less writ petition. The writ petition is sans merit. Consequently, this writ petition stands dismissed with a cost of Rs.1,00,000/- which shall be payable to the respondent-applicant by way of demand draft. The petitioners are directed to grant all benefits as allowed by the Tribunal vide order dated 02.09.2022 and the cost of Rs.1,00,000/- imposed by this Court to the respondent-applicant on or before 31.05.2023. In case, the petitioners fail to comply with the aforesaid directions, the respondent-applicant would be at liberty to file appropriate application before this Court.
(ANIL KUMAR UPMAN),J (PANKAJ BHANDARI),J
Sudhir Asopa
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