Dr. C.P. Acharya vs Kendriya Vidyalaya Sangathan and Others

This writ petition has been preferred by Dr. C.P. Acharya, which is directed against the judgement of the Central Administrative Tribunal dt. 4.1.2011. The Tribunal by the aforesaid judgement has dismissed the Original Application filed by the petitioner on the ground of limitation. Petitioner has in the original application prayed for quashment of the orders/letters dt.17.5.2002, 6.4.2005, 26.5.2006, 22.12.2006, 18.1.2007 and 27.5.2005 and for a direction to the respondents for counting the past services rendered by him with the Government of Rajasthan since 1.10.1964 to 26.8.1977 as qualifying service for the purpose of grant of pension and for recalculating and grant of full pension with all consequential benefits treating his qualifying service as 36 years and 10 months with interest @ 18% per annum. Indisputably, the petitioner rendered services on the substantive post of Teacher Gr. III and thereafter Teacher Gr. II with the department of Sanskrit Education, State of Rajasthan from the period between 1.10.1964 to 3.12.1971. While serving the State of Rajasthan, he applied for appointment on the post of Lecturer (Sanskrit) in Border Security Force Academy (Boy''s School) Tekanpur, Gwalior through proper channel and with the permission of the competent authority. On being selected, he was relieved by Principal, Government Sanskrit College, Udaipur. Request of the petitioner to maintain his lien with the Sanskrit Education Department was granted. Petitioner joined services with the BSF Academy on 9.12.1971 and served upto 25.8.1977. While so serving, petitioner applied for appointment on the post of Post Graduate Teacher (Hindi) in Kendriya Vidyalaya Sangathan (for short-KVS) through proper channel. On his selection as Post Graduate Teacher (Hindi) with KVS, he was relieved by the Government of Rajasthan. Petitioner joined services with KVS on 26.8.1977. He was confirmed in the services of KVS on 1.8.1991 and later promoted on the post of Principal Gr. II. The KVS issued a letter on 29.7.1986 forwarding order of the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare O.M. No. 20 (10)/84-P&PW-Vol. II dt. 7.2.1986 for counting the past services for the purpose of pension of employees of Central Government and Central Autonomous Body seeking absorption in the State of Rajasthan and vice versa. Petitioner on that basis submitted an application on 4.1.1989 to count his services rendered under the State of Rajasthan for the purpose of pension. The said application was forwarded by Principal K.V. No. 1 to Assistant Commissioner, KVS, Regional Office, Jaipur on 7.1.1989. Petitioner retired as Vice Principal, K.V. No. 3, Jaipur on attaining the age of superannuation on 31.7.2001. The Assistant Commissioner (Administrative and Finance), KVS, New Delhi by order dt. 17.5.2002 refused to count the past services of the petitioner on the ground that he did not exercise option for counting such services within the prescribed time limit i.e. upto 31.12.1990. Petitioner submitted another representation on 11.7.2004, which was forwarded by the Regional Assistant Commissioner, KVS vide letter dt. 15.7.2004. By order dt. 6.4.2005 again respondent No. 4 namely; Varistha Prashasnik Adhikari (Sthapana), KVS, New Delhi denied the benefit of counting the past services of petitioner for the purpose of pension. Petitioner then submitted representation on 14.4.2005 which was forwarded by the Sahayak Ayukt vide letter dt. 27.4.2005 and was rejected vide letter dt. 27.5.2005. Petitioner again made representation on 19.4.2006, which too was rejected on 26.5.2006. It was in those facts that the petitioner filed Original Application before the Tribunal praying for the aforesaid reliefs, which was dismissed by the Tribunal by impugned order dt. 5.1.2011.

Shri R.N. Mathur, learned senior counsel appearing for the petitioner submits that the first application which the petitioner submitted for counting his services as qualifying for the purpose of grant of pension was dt. 4.1.1989 and therefore that would be considered as sufficient compliance of exercise of option by the petitioner. Petitioner not only rendered service with the State of Rajasthan, but also part of service he rendered with BSF while retaining lien with the State Government, is also refused to be counted by the KVS for the purpose of grant of pension. When petitioner submitted initial application on 4.1.1989, there was no reason for him not to believe that his option would not be accepted, particularly when proper instructions in this behalf have been issued by the Government of India. He came to learn about non-counting of his services for the purpose of pension only when his pension case was finalised and he received the pension papers. It is argued that the loss of pension to the petitioner is a perennial and continuous cause of action and, therefore, the Tribunal could not have rejected the Original Application on the ground of limitation. It is argued that the application for condonation of delay has also been dismissed by the Tribunal. The reasons given by the Tribunal are wholly unjustified and irrelevant. Petitioner would not have deliberately caused the delay because he would not be benefited thereby. The Tribunal apart from rejecting the Original Application on delay has also rejected the same on merits. Impugned order suffers from numerous infirmities and has many contradictions.

It is argued that for counting the services for the purpose of grant of pension to the employees of Central Government and Central Autonomous Bodies seeking absorption in Autonomous Bodies under the State Government and vice-versa, KVS has issued an order whereby copy of the order of the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension of Pensioners Welfare O.M. No. 28 (10)/84 P & PW-Vol. II dt. 7.2.1986 has been forwarded for information and necessary action to all KVS. These orders clearly substantiate that there is a reciprocal arrangement for counting the past services of the employees moving from Government of Rajasthan to Central Government or Vice- Versa. The first application that petitioner submitted on 4.1.1989 was forwarded by his Principal on 7.1.1989. As regards the option, the learned, senior counsel argued that neither the respondents invited options, nor was any letter inviting such option was ever served upon the petitioner. The letter dt. 17.5.2002 was not endorsed to the petitioner, nor was served on him or nor was otherwise brought to his notice. It cannot be said that the petitioner has made any delay in exercising the option, more particularly, when he has already submitted a request to that effect vide his application dt. 4.1.1989, which was forwarded by the Principal of his school by his letter dt. 7.1.1989. It is argued that the Tribunal has mechanically rejected the Original Application without objectively applying its mind to the facts of the case. Learned senior counsel has submitted that the petitioner even submitted a detailed representation to the Commissioner, KVS, New Delhi on 11.7.2004 wherein he invited attention of the respondents that he had already submitted his option through proper channel on 4.1.1989 for counting his services, but that aspect of the matter has been completely ignored by the Tribunal. It is therefore prayed that the writ petition be allowed in terms of the prayers made as above.

Shri Krishna Verma, learned counsel for the respondents opposed the writ petition and submitted that petitioner retired from services on 31.7.2001 and he for the first time filed the Original Application on 20.8.2007, therefore, the Original Application has rightly been dismissed as time barred. It is submitted that as per provisions of Sec. 21 of the Administrative Tribunals Act, 1985 the petitioner could be awarded maximum six months from the date of filing of representation and thereafter he was required to have file Original Application within one year on expiry of such six months. Petitioner has not given any justification as to why the Original Application was filed with enormous delay after lapse of six years from the date of retirement. It is argued that the petitioner was appointed in the services of KVS way back on 26.8.1977, therefore, in a way, petitioner is seeking to make a stale claim, more than three decades thereafter. Learned counsel argued that KVS had issued a letter on 20.10.1990 that for everyone to exercise option for counting his past service rendered outside the KVS, subject to certain restrictions, on or before 31.12.1990. This letter was issued as special case so that eligible employees, who have not hitherto exercised such option for counting the past service were allowed to exercise such option. The petitioner failed to exercise his option, therefore, his past services were not added with the service of KVS. It is argued that Border Security Force (BSF) has not been joined as a party-respondent either before the Central Administrative Tribunal or before this Court in regard to the alleged service rendered by petitioner in BSF, therefore, also the Original Application was liable to be dismissed. It was argued that a similar writ petition titled Murlidhar Sharma through his L.Rs. v. State of Rajasthan & Ors., D.B. Civil Writ Petition No. 1780/2010, has been dismissed by this Court by judgement dt. 14.08.2012. It was denied that the petitioner submitted the letter dt. 4.1.1989 exercising the option. Such a plea is false, without any factual foundation and contrary to the material on record. Reference was made to the Circular dt. 7.2.1986 issued by the Government of India. The option for counting the past service for the purpose of pensionary benefits was required to be exercised within one year from the date of absorption and joining in the department of Government of India and since the petitioner did not exercise such option, he would not be entitled to now exercise the option. It is therefore prayed that the writ petition be dismissed.

Shri Ganesh Meena, learned Government Counsel for State of Rajasthan submitted that State Government in reply to the writ petition before this Court has categorically admitted on oath that the petitioner served with their Sanskrit Education Department as Teacher Gr. III on 1.10.1964 and was confirmed in that capacity vide order dt. 7.8.1968. He was promoted as Teacher Gr. II on 10.10.1968 and continued to serve with the Department till 3.12.1971, retaining his Hen. While working with them, he was selected for the post of Lecturer in BSF Academy (Boy''s School) Tekanpur , Gwalior (Madhya Pradesh) and was relieved to join there on 3.12.1971. It has also been stated that the service rendered by the petitioner with the State Government and BSF was continuous and can be validly counted as qualifying service for the purpose of pension and other benefits under the KVS as per the rules and regulations.

We have given our anxious consideration to the rival submissions and perused the material on record.

We shall first deal with the judgement of coordinate bench in Murlidhar Sharma, supra, which the respondents have cited to resist the claim of the petitioner. That was a case where the employee concerned had served three aided schools before joining the KVS during the period from 1955 to 1966. He prayed for counting that service for the purpose of computing his pensionary benefits. The petitioner in that case had retired in the year 1994 and did not agitate the matter in this regard till 2006 when for the first time he filed Original Application. Then there was a policy circular of Government of India dt. 22.2.2006 which was relied in that case to the effect that service rendered in a public sector undertaking and/or in a private institution will not be counted for the purpose of pension. This Court upheld the decision of the Tribunal holding that since the validity of the Circular dt. 22.2.2006 has not been challenged by the legal representatives of the late Shri Murlidhar Sharma, who died on 31.5.2009, no such benefit against the policy circular of the Government of India can be conferred on the legal representatives and for that matter, the deceased employee. There is no such impediment in the present case. The only reason which has weighed with the Tribunal in rejecting the Original Application of the petitioner is delay and we have to examine the impugned order from the stand point whether delay in the facts of the case alone could have justified the decision of the Tribunal in dismissing the Original Application and that of the respondents in refusing to count past service rendered by the petitioner, with the State Government and to the paramilitary forces of the Central Government in the civilian wing of BSF.

It is not in dispute and has not been disputed by the State Government, which was a party before the Central Administrative Tribunal, is also a party before us that petitioner rendered services on the post of Teacher Gr. III and Teacher Gr. II consciously for a period from 1.10.1964 to 3.12.1971 with them. He with permission from the competent authority applied for appointment on the post of Lecturer (Sanskrit) in Border Security Force, Academy (Boy''s School) Tekanpur, Gwalior in the State of Madhya Pradesh on 3.12.1971. Having been selected he joined services thereon 9.12.1971. It is also not in dispute that during the period when he continued to serve the BSF Academy from 9.12.1971 to 23.8.1977, his lien was still retained with the State Government. Even if, therefore, the BSF has not been impleaded as a party-respondent to these proceedings, it cannot be a reason for not believing the assertion of the petitioner that he rendered services to BSF. In fact, to the extent the petitioner has served the BSF for the period from 9.12.1971 to 23.8.1977, it was a service rendered by him under the Central Government itself. It is surprising that the respondents have been disputing the exercise of option by the petitioner vide his letter dt. 4.1.1989 much in the face of their letter of the Principal dt. 7.1.1989 (Annexure-A/1) with dispatch No. KV-1/JPR/88-89/Misc-67 addressed to the Assistant Commissioner, KVS, Jaipur. A categorical plea was set up by the petitioner in para 6 of the Original Application to that effect. Reply to para 6 of the Original Application submitted by the respondent-KVS is too vague to be accepted as all that is stated therein that such plea of the petitioner is without any factual foundation and contrary to the material on record that the said letter stating that petitioner has failed to exercise his option, has been dispatched by KVS No. 1 bearing No. F. 18 (Misc.)/P5/87-88/KVS (P & I) dt. 22.10.1990, However, no affidavit either of the Principal of K.V. No. 1 or of any staff member has been filed, nor a copy of the dispatch register of the relevant date has been produced to disprove the claim of petitioner. Besides, the fact that there is a reciprocal arrangement between the Central Government and Central Autonomous Bodies and the State Government to count the services of the employees, who having served one of them, joined the services of another and vice versa. The Circular of the KVS dt. 29.7.1986, which has been issued with reference to the Government of India Circular dt. 7.2.1986 is on record. The said Circular categorically includes the State of Rajasthan as one whose employees having gone to the Central Government organisation, would be entitled to count their services for grant of pensionary benefits.

As regards the delay, the petitioner has submitted that he learnt about non-acceptance of his option dt. 4.1.1989 when his pension was finalised. It was thereafter that he made representations dt. 11.7.2004, 14.4.2005 and 19.4.2006. Delay in the present case cannot be viewed so seriously, as in any case, what the petitioner is claiming is that his period of service that he rendered in the State Government and civilian wing of BSF, a paramilitary force of the Central Government for the purpose of computation of pensionary benefits. Delay would not be material because the petitioner is not claiming any pecuniary benefits for the aforesaid two spells of service that he rendered with the State Government and BSF. The cause of action for the petitioner would have arisen only when his pension case was finalised and, in this case, such cause of action may be deemed to have been arisen when he retired from service on 31.7.2001, on attaining the age of superannuation. In any case, the respondents have not contested and cannot contest the plea that from the date of making first representation, the petitioner was lawfully entitled as per Sec. 21 of the Administrative Tribunals Act to agitate his claim within six months and thereafter could have filed the Original Application within one year. The representation of petitioner for the first time was rejected by the Assistant Commissioner on 17.5.2002. It should be within one year from that date that the petitioner should have filed the Original Application before the Tribunal. Nonetheless the facts remains that not counting the period of service of petitioner is a continuous, perennial and recurring cause of action because this is bound to affect his pension every month in that he would be getting lesser pension than what have been payable to him upon counting his past services. In our view, the Tribunal was therefore not justified in dismissing the Original Application only because of delay.

Perusal of judgement of Tribunal also indicates that it has while dismissing the Original Application on delay, was not persuaded to condone the delay primarily for two reasons. Firstly, it has held that the Original Application has been filed after lapse of 30 years i.e. on 22.8.2007 and this period of 30 years, the Tribunal appears to have counted from the date of joining of services with the respondents on 26.8.1977, According to Tribunal, the cause of action arose to the petitioner when the KVS issued the order dt. 22.10.1990 on the basis of Circular of the Government of India dt. 7.2.1986 and therefore counting even from that date the original application would be barred by limitation of about 20 years. We are unable to countenance that finding of the Tribunal. There are two reasons for our holding so. Firstly, in our considered view, the petitioner has pleaded that he has submitted a representation through Principal of KVS No. 1 on 4.1.1989, which was forwarded by Assistant Commissioner, KVS Regional Office, Jaipur with forwarding letter dt. 7.1.1989, a fact not effectively rebutted by respondents, Secondly, as already occasioned, the cause of action actually arose when the petitioner was denied the duly calculated full pension, without adding the qualifying service. This is when he could agitate his grievance. He having already exercised the option before the cut off date of 31.12.1990 as conveyed to the employees the KVS vide letter dt. 20.10.1990 would not adversely affect him. Besides, that letter has not been shown to have been served on the petitioner. Surprisingly, any such letter has neither been placed before the Tribunal, nor before this Court. The letter dt. 17.5.2002 is nothing but a communication addressed by the Assistant Commissioner (Admn. & Fin.) to Assistant Commissioner, KVS, Regional Office, Jaipur by which the representation of the petitioner dt. 21.12.2001 was dismissed and copy of the said letter has been served upon petitioner much belatedly on 28.6.2004.

In the facts of the case, therefore, the filing of Original Application cannot be held to have been negligently or deliberately delayed. The Tribunal, in our considered view, has erred in law in not condoning the delay.

In view of above, the writ petition is allowed. The impugned order dt. 4.1.2011 deserves to be set aside and is accordingly set aside. The Original Application of the petitioner is also consequently allowed. Nevertheless, even when we are not persuaded to condone the delay in filing the Original Application, in our view, the respondent-KVS cannot be held responsible for making payment of interest on the enhanced amount of pension or arrears thereof to the petitioner for all this intervening period. We therefore hold that petitioner would not be entitled to any interest for the intervening period. The respondents are directed to treat the period of service for the period from 1.10.1964 to 3.12.1971 rendered by the petitioner with the State Government and for the period from 3.12.1971 to 26.8.1977 with the BSF as qualifying service for the purpose of grant of pension with all consequential benefits. The necessary exercise for computing the pension and other retrial benefits of the petitioner shall be made within a period of three months from the date copy of this order is served upon the respondents. The petitioner would, however, not be entitled to any interest for the period interior to the expiry of this period of three moths. However, any delay beyond the said period of three months would entitle the petitioner to interest @ 9% per annum for the payment of consequential benefits only. The writ petition is accordingly allowed with no order as to costs.