Monday, March 27, 2017

CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Original Application No. 180/00214/2016


Thursday, this the 23rd day of March, 2017
CORAM: Hon'ble Mr. U. Sarathchandran, Judicial Member
N.R. Sajan, MTS, INS Venduruthy, Naval Base, Kochi - 682 004, S/o. Rajappan, aged 47 years,
residing at Nikarthilthara House, Narakal PO, Ernakulam District. ... Applicant
(By Advocate : Mr. N. Radhakrishnan) Versus
1. Union of India, represented by the Secretary to Government of India, Ministry of Defence,
New Delhi - 110 001.
2. The Flag Officer Commanding in Chief, Southern Naval Command, Naval Base, Kochi - 682 004.
3. The Chief Staff Officer, (Personnel and Administration), Southern Naval Command, Kochi - 682 004.
4. The Secretary, Ministry of Personnel, Public Grievances and Pension (Department of Personnel & Training), Government of India, North Block, New Delhi - 110 001. ... Respondents
[By Advocate: Mr. N. Anilkumar, Sr. PCGC (R)]
This application having been heard on 06.03.2017, the Tribunal on 23.03.2017 delivered the following: ORDER- Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicant has approached this Tribunal being aggrieved by not including him under the Central Civil Services (Pension) Rules, 1972 [CCS (Pension) Rules, 1972] and by including under the New Pension Scheme (NPS) which was brought into force with effect from 1.1.2004.
2. He was first engaged by the respondents in 1972 as a casual daily rated labour on full time basis having been sponsored by the Employment Exchange. Later he was granted temporary status under the Casual Labour (Grant of Temporary Status & Regularisation) Scheme of Government of India in 1993 vide Annexure A1 order. The casual labourers under the respondents Nos. 2 & 3 who were included in the gradation list filed OAs Nos. 635/2001, 101/2005 and 446/2006 before this Tribunal praying for regularising them in Group-D vacancies. The applicants in those cases were regularised in Group-D posts. As the applicant and three others were not included he filed OA No. 687 of 2007 for granting the same relief to him also for regularisation. OA No. 687 of 2007 was allowed on 6.6.2008 vide Annexure A2 order. In terms of Annexure A2 order of this Tribunal respondents issued Annexure A3 order regularising him in Group-D post with effect from 15.9.2008. He was, therefore, included only under the NPS ignoring the fact that he had worked in the temporary capacity prior to 1.1.2004. He, therefore, seeks the relief as under:
'i) To declare that the applicant is entitled to be granted pension as per the CCS (Pension) Rules, 1972;
ii) To direct the respondents to reckon the applicant as those covered under CCS (Pension) Rules, 1972 for all purposes and to compute, draw and disburse his pension and pensionary benefits applying the said Rules.
iii) To declare that the applicant is entitled to have half the period of his service as full time casual labourers, and half the period of service as temporary status casual labourers to be reckoned as qualifying for determining their qualifying service for the purpose of fixation of pension and other pensionary benefits.
iv) To direct the respondents to refund the amount recovered from the applicant towards their contribution to the contributory fund under the New Pension Scheme.
v) Grant such other reliefs as may be prayed for and the court may deem fit to grant.'
3. Respondents filed reply statement contending that as the applicant was regularised only on 15.9.2008, he cannot claim anti-dating of his regularisation with effect from the date prior to 1.1.2004. Respondents pray for rejecting the OA.
4. A rejoinder was filed by the applicant refuting the contentions in the reply statement and relying on the judgment dated 27.1.2016 of High Court of Kerala in WP(C) No. 16944/2008 and also a judgment dated 27.1.2010 of the Delhi High Court in WP(C) No. 12690/2009.
5. Heard Mr. N. Radhakrishnan, learned counsel for the applicant and Mr. N. Anilkumar, learned Sr. PCGC B. for the respondents. Perused the record.
6. There is no dispute for the respondents that the applicant after having been engaged initially as casual labour was granted temporary status under the DoP&T scheme vide OM No. 51016/2/90/Estt.(C), dated 10 th September, 1993. In that scheme it was envisaged that a casual labour with temporary status if regularised subsequently, 50% of the service rendered by him under temporary status would be counted for the purpose of retirement benefits. It is also not in dispute that the applicant is such a person who has been granted temporary status as per the above said 1993 scheme of DoP&T. But he was not regularised as a Group-D employee unlike his colleagues who secured order for regularisation as Group-D filed OAs Nos.635/2001, 101/2005 and 446/2006 . There is no controversy he filed OA No. 687/2007 and obtained Annexure A2 order dated 6.6.2008 and thereafter he was regularised as Group-D employee with effect from 15.9.2008. This Tribunal notes that he was granted temporary status and was working as such continuously without any interruption till he was regularised on 15.9.2005 vide Annexure A3 order. As per the 1993 scheme of DoP&T causal labourers granted temporary status were entitled to the following benefits:
'(i) Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular Group `Db
(ii) Benefits of increments at the same rate as applicable to a Group `Db employee would be taken into account for calculating pro-rata wages for every one year of service subject to performance of duty for at least 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 termination of service for any reason or on their quitting service.
(iv) Maternity leave to lady casual labourers as admissible to regular Group `Db 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 yearsb temporary status, the casual labourers would be treated on par with temporary Group `Db Fund, and would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group `Db employees, provided they furnish two sureties from permanent Government servants of their Department.
(vii) Until they are regularized, they would be entitled to Productivity Linked Bonus/ Ad-hoc bonus only at the rates as applicable to casual labourers. ' The above benefits strongly indicate that those employees have at least been given the status almost akin to that of a regular Group-D employee especially in the matter of getting DA, HRA, CCA, increments, leave encashment and the facility for carrying forward the leave at their credit on regularisation, maternity leave, etc.
7. In this context it is worth examining Rule 13 CCS (Pension) Rules,1972. It reads:
'13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity : Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post : Provided further that -
(a) in the case of a Government servant in a Group `D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and
(b) in the case of a Government servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.
*(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under Rule 19 *Inserted vide Notification No. 28/19/2001-P&PW(B) dated 11-11-2003 published as so no. 3205 in Gazette of India dated 22-11-2003.' (emphasis supplied) It can be seen that the qualifying service for the purpose of pension under the CCS (Pension) Rules, 1972 is reckoned from the date the government servant takes charge of the post to which he is first appointed in temporary capacity provided that such temporary service is followed without interruption by substantive appointment in the same or another service or post. There is no quarrel for the respondents that the applicant was given regularisation vide Annexure A3 order while he was uninterruptedly working as casual labour with temporary status.
8. Learned counsel for the applicant relied on Annexure A4 order of this Tribunal and also Annexures A6 & A7 judgments of the Kerala and Delhi High Courts respectively. In Annexure A7 judgment the Delhi High Court the High Court observed: '.............If Rule 13 of the CCS (Pension) Rule, 1972 obligates commencing of qualifying service from the date an employee takes charges of the post, on 29 th June, 2004 on appointment after continuous service on the temporary post, it will relate back to 1997 when the temporary status was granted to the respondent. Though new pension scheme was introduced from 1 st January, 2004, however, Rule 13 of CCS (Pension) Rules, 1972 has not been abrogated by the new pension scheme..........' In Annexure A6 judgment the Kerala High Court noted:
'12. It is to be noted that the Tribunal has given a direction to the Department to have the temporary status conferred upon the applicant with effect from 1.1.1993 and to give regularization, based on seniority. It will definitely give a vested right to the applicant to get governed under the old CCS (Pension) Rules which in fact has undergone a substantial change with effect from 1.1.2004. This Court finds that the applicant having, substantiated his rights and liberties to get the temporary status and regularization will stand to be loser, if the date of granting temporary status and subsequent regularization as now ordered by the department (from 11.11.2005 and 15.9.2009 respectively) is let to stand, which requires to be corrected and rectified in the manner as directed by the Tribunal.'
9. It is worth noticing that the DoP&T in its recently issued OM No.49014/2/2014-Estt(C), dated 26th February, 2016 states:
'6. The position has been reviewed in the light of the Court judgements in consultation with the Department of Expenditure. It has now been decided that the casual labourers who had been granted temporary status under the scheme, and have completed 3 years of continuous service after that, are entitled to contribute to the General Provident Fund.
7. 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits in respect of those casual labourers who have been regularised in terms of para 8 of the OM dated 10.09. 1993.
8. It is emphasised that the benefit of temporary status is available only to those casual labourers who were in employment on the date of the issue of the OM dated 10th September, 1993 and were otherwise eligible for it. No grant of temporary status is permissible after that date. The employees erroneously granted temporary status between 10.09.1993 and the date of Hon'ble Supreme Court judgement in Union Of India And Anr vs Mohan Pal, 2002 (3) SCR 613, delivered on 29 April, 2002, will however be deemed to have been covered under the scheme of 10.09.93.'Even though the aforequoted OM issued by the DoP&T on 26.2.2016 does not speak in so many words as to whether the casual labourers who were granted temporary status as per the 1993 OM on regularisation gets the right to be included in the CCS (Pension) Rules, 1972, it definitely acknowledges that such persons are entitled to contribute to the General Provident Fund which was a concomitant of the CCS (Pension) Rules, 1972.
10. Nevertheless, the position emerges from the aforecited judicial decisions is that the temporary status enjoyed by the casual labourers as per the 1993 scheme anterior to their regularisation in Group-D makes them eligible for the benefits of CCS (Pension) Rules, 1972 if such temporary status continued on the day when the NPS came into vogue. Therefore, the stand taken by the respondents that the applicant having been appointed as Group-D employee only after 1.1.2004 is not entitled to the benefits of CCS (Pension) Rules, 1972 is unsustainable.
11. In the result, the Original Application is allowed to the extent directing the Respondents to include the applicant in the CCS (Pension) Rules, 1972, to permit him to subscribe to the General Provident Fund and also to stop recovering contributions under the NPS. If any amount has been deducted from his salary towards the NPS the same shall be refunded to him. The above exercise shall be completed within two months from the date of receipt of a copy of this order. No order as to costs.
(U. SARATHCHANDRAN)
JUDICIAL MEMBER
For original judgment kindly refer to the web of Hon court-NFRP
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