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Judgment
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 sought the following reliefs:-
"i) Quash the communication dated 20.10.2015;
ii) Direct the respondents and respondent no.1 in particular to grant/extend pension to applicant with interest along with commutation amount of pension from the date of entitlement of the applicant after his retirement;
iii) Exemplary cost in favour of applicant and against the respondent as they compelled to applicant to file present O.A.;
iv) Any other relief/s which Hon"ble Tribunal deems fit."
Brief facts of the case are that this is the second round of litigation. Earlier the applicant, Ex-Driver of the respondents organization, filed OA No.1820/2014 sought quashing of letter dated 26.9.2012, vide which his case for grant of pension was rejected, and further sought direction to the respondents to grant him pension and other benefits. The said OA was disposed of by this Tribunal vide Order dated 27.8.2015 with the following directions:-
"5. In view of the above, the OA is disposed of with the directions to the respondent to re-calculate the qualifying service of the applicant and determine his eligibility afresh with due regard to aforementioned rules/instructions within eight weeks from the date of receipt of a copy of this order under intimation to the applicant. No costs."
2.1 Pursuance to the aforesaid directions of this Tribunal, the respondents have considered the case of the applicant for re- calculating the qualifying service of the applicant and passed the letter dated 20.10.2015 again rejected the case of the applicant for grant of pension, which is impugned by the applicant in this OA.
2.2 Counsel for the applicant contends that respondents have not re-calculated the qualifying service of the applicant in true letter and spirit and reliance placed on Rules 13, 21, 22 of the CCS (Pension) Rules; there is no provision to constitute any committee for the purpose of re-calculating the qualifying service for the purpose of pension; this Tribunal following the CCS (Pension) Rules has already allowed the required training and Retainer Crew period as qualifying service in OA No.43/2014 (Karan Singh v/s Delhi Transport Corporation).
Counsel for the respondents submits that in compliance of the aforesaid Order of this Tribunal dated 27.8.2015 in OA No.1820,2014, the qualifying service of the applicant was re-calculated as per the rules on the basis of entries made in the record, i.e., S/Book, Personal File & MARs of the applicant and the same were also conveyed to the applicant vide letter dated 20.10.2015 as the qualifying service for pension purpose finally comes to as 9 years 3 months & 18 days only and the same will be as 9 years and 6 months only after taking into consideration decimal formula.
Counsel further submitted that the said re-calculation was done through departmental committee constituted for this purpose with due regard to the Rules on the basis of entries made in the records.
Heard learned counsel for the parties and perused the impugned order dated 20.10.2015. While issuing the impugned order dated 20.10.2015, the respondents have considered the Rule 21 of the CCS (Pension) Rules, OM dated 22.12.1983 as also Rule 49 (3) of the Rules, ibid, as referred by this Tribunal when the earlier OA filed by the applicant was disposed of by this Tribunal.
Rule 21 of the Rules, ibid, provides as under:-
"All leave during service for which leave salary is payable and all extraordinary leave granted on medical certificate shall count as qualifying service."
Further decided vide GOI"s order 1 appended below the Rule 21 that
"extra-ordinary leave taken on other ground is treated as non-qualifying and therefore, a definite entry is to be made in the service records to that effect. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event. Even where this is not done, it should still be possible to rectify the omission during the period allowed for preparatory action, i.e. from two years in advance of the retirement date to eight months before retirement. At the end of that period, however, (i.e. when the actual preparation of the pension papers is taken in hand), no further enquiry into past events or check of past records should be undertaken. Specific entries in the service records regarding non-qualifying periods will be taken note of and such periods excluded from the service. As spells of extraordinary leave not covered by such specific entries will be deemed to be qualifying service."
In reference to Rule 21 of the Rules ibid, the respondents have stated that the matter regarding 225 days medical leave alleged to have availed by the applicant in between April, 1983 to 2011 has been got examined through a departmental committee constituted for the purpose on the basis of documents available on record. The said examination report (Annexure B) has been enclosed with the said impugned order and as per the said report, the applicant was not granted 225 days leave without pay on medical ground during the period from 1983 to 2011. Rather the said period was counted and treated as unauthorized absence because of rejection/non-submission of leave application/leave not sanctioned by the competent authority etc. Besides that, in two cases, disciplinary action was also taken against the applicant on the charge of unauthorized absence for the period from March, 1989 to December 1990. Thus, for the period of 225 days, the applicant was not granted extraordinary leave on medical certificate as alleged and hence, the same cannot be considered as qualifying service for pension in terms of Rule 21 of the Rules ibid and finally observed that the applicant"s qualifying service for pension is 9 years 3 months and 18 days only. 6. The respondents have also considered the OM dated 22.12.1983. Relevant excerpt of said OM reads thus:- "22. Counting of periods spent on training The Government may, by order, decide whether the time spent by a Government servant under training immediately before appointment to service under that Government shall count as qualifying service.
GOVERNMENT OF INDIA"s DECISIONS
(1) Pre-appointment training period counts as qualifying service. - The Staff Side to the National Council (JCM) had suggested inter alia that the service rendered by an employee during the training period before his regular appointment to the grade may be treated as qualifying service for pension.
The request made by the Staff Side of the National Council (JCM) has been examined and it has now been decided that in respect of Groups `C' and `D' employees, who are required to undergo departmental training relating to jobs before they are put on regular employment, training period may be treated as qualifying service for pension, if the training is followed immediately by an appointment. This benefit will be admissible to all Groups `C' and `D' employees even if the officers concerned are not given the scale of pay of the post but only a nominal allowance.
The Ministry of Finance, etc., are requested to bring the above decision to the notice of all officers working under them including those in the attached and subordinate offices for their guidance.
These orders come into force with effect from 22nd December, 1983.
Benefit of these orders will be available to all those employees who retired on or after 22nd December, 1983.
No restriction is imposed on the admissibility of the above benefit to the employees who were recruited in `C' and `D' posts but retired from Groups `A' and `B' posts."
6.1 The respondents have stated that the departmental training period is to be counted as qualifying service for pension only in such an eventuality when the training is followed immediately by regular appointment to the grade. But in the applicant"s case the, directions were issued for undergoing training vide letter dated 13-11-1982 and after completion of training, the applicant was offered the appointment as Retainer Crew Driver (Daily Wager) and not regular appointment and the applicant was appointed as Retainer Crew Driver w.e.f. 30.01.1983 and regular appointment to the grade of driver was made w.e.f. 29.07.1983. Thus, it is apparent that during the training period, the applicant was not on the rolls of the respondent. Moreover, the training was not followed by regular appointment to the grade which is a pre-condition for counting the training period as qualifying service for pension. 7. Rule 49 (3) of the Rules ibid provides as under:-
"3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service."
7.1 The respondents have also considered the aforesaid Rule 49 (3) of the Rules and observed that as per re-calculation, the applicant"s qualifying service has been found 9 years 3 months and 18 days only and as per this Rule 49, the same will be 9 years and 6 months only. Therefore, the applicant is not eligible for pension.
Moreover, the applicant is claiming the benefit of Rule 13 of CCS(Pension) Rules, 1972 for claiming pensionary benefits which provides 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 and temporary service is followed without interruption by substantive appointment in the same or another service or post." But the applicant has not been able to establish his claim because he was never appointed either in substantive or in officiating or temporary capacity. Therefore, this rule also will not be helpful to the applicant.
So far as the contention of the applicant that there is no provision to constitute any committee for the purpose of re-calculating the qualifying service for the purpose of pension is concerned, this Court do not find any illegally and infirmity in constituting the same and rather it is more appropriate to show the bonafide in considering the case.
So far as reliance placed by the applicant in OA No.43/2014 (Karan Singh v/s Delhi Transport Corporation) is concerned, the said decision of this Tribunal was challenged by the respondents before the Hon"ble Delhi High Court vide Writ Petition (C) No.7662/2015 and the Hon"ble High Court allowed the said Writ Petition vide Order dated 15.3.2016 and thereafter the applicant in the said case challenged the said Order of the High Court before the Hon"ble Supreme court vide Civil Appeal No.12743/17 (arising out of SLP (C) No.18321/2016) and the Apex court vide Judgment dated 13.9.2017 held that as the issue has been referred for consideration by a Larger Bench in CA No.7159/2014 (DTC vs. Balwan Singh and others) and directed the said SLP be listed after the decision in above reference matter. Therefore, this Court of the view that reliance on the judgment of this Tribunal in OA No.43/2014 supra is of no help at this stage.
In view of the above discussion, for the foregoing reasons, this Court does not find any illegally in the impugned order dated 20.10.2015 (Annexure A-1) and accordingly the present OA being devoid of merit is dismissed. There shall be no order as to costs.