AI Structured Summary
Not yet generated for this judgment
Judgment
R. Mahadevan, J.—Challenging the order dated 22.08.2012 of the Central Administrative Tribunal, Chennai, dismissing the Miscellaneous
Application in M.A. No. 408 of 2011 and the Original Application in O.A. No. 1008 of 2012 filed by the petitioner, the Writ Petition has been
filed. The petitioner in the Original Application approached the first respondent Tribunal to declare that he is entitled to receive pension for the
period of service rendered in the Central Public Works Department from 20.11.1964 to 30.08.1977. Along with the Original Application, the
petitioner had also filed the Miscellaneous Application to waive the waiting period of six months from the date of representation for filing the
Original Application. The Central Administrative Tribunal dismissed the Miscellaneous Application and the Original Application holding that the
cause of action arose in 1977 and therefore it has no jurisdiction to entertain the Original Application. Aggrieved, the petitioner has approached
this Hon''ble Court in the present Writ Petition. The case of the petitioner is that he was appointed as Section Officer in the Central Public Works
Department on 20.11.1964 on temporary basis. The post was subsequently re-designated as Junior Engineer (Civil). He was sent on deputation to
International Airports Authority of India on 08.07.1975, which was later renamed as Airports Authority of India, where the petitioner was
absorbed with effect from 01.09.1977 and retired in December 2000 as Assistant General Manager (Civil). The petitioner sent various
representations including the one on 12.02.2011 to the fourth respondent claiming pension for the period 20.11.1964 to 30.08.1977. As the fourth
respondent did not pass any orders, he had filed the Original Application along with the Miscellaneous Application before the Tribunal.
The fourth respondent resisted the Miscellaneous Application on the grounds that the petitioner was already informed by letter dated
01.04.2011 about his ineligibility for pension as he was not confirmed while in service with the fourth respondent; that it was already recorded in
his service register that he was not eligible for pension and he was entitled for gratuity alone, that he was relieved from service on 07.07.1975; that
pension can only be sought by permanent employees; and that, the application is not maintainable as the cause of action arose several years before
the Constitution of the Central Administrative Tribunal. The fourth respondent also opposed the applications on the ground that the petitioner has
approached the Tribunal after 34 years and sought dismissal of the Miscellaneous Application on latches. The petitioner filed a reply affidavit
stating that as per Rule 2 (ii) and 2(iii) of Central Civil Services (Pension) Rules, 1972, an employee is deemed to be confirmed on completion of
one year, and that there is no difference between Permanent and Temporary employee, when it comes to pension.
The Tribunal holding that the petitioner has not made out a case for entertaining the Miscellaneous Application, dismissed the M.A. and further
went on to hold that the Tribunal does not have jurisdiction to entertain any application with regard to the claim which arose in 1977 and that even
on merits the application cannot be entertained, and dismissed the Original Application.
The issues for consideration before this Hon''ble Court can be classified as follows:
(i) Whether the petitioner is entitled to pension as sought by him?
(ii) Whether the claim of the petitioner if eligible, can be defeated by latches and whether the Tribunal has jurisdiction to adjudicate the present
claim?
Heard the learned counsel for the petitioner and the learned Senior Panel Counsel for respondent 2 and 3. Albeit, the Tribunal has held that the
petitioner has no case on merits, there is no discussion to that effect. The applicability of the provisions of Central Civil Services (Pension) Rules,
1972 and the Judgments relied upon by the petitioner have not been discussed. Therefore, this Court has decided to first examine as to whether
the petitioner is eligible for pension.
The claim of the petitioner is that his service from 20.11.1964 to 30.08.1977 was permanently absorbed into International Airports Authority of
India with effect from 01.09.1977 and that there is no break in service. The learned counsel for the petitioner placing reliance upon Rule 2 (ii), (iii)
and 13 of the Central Civil Services (Pension) Rules, 1972 argued that even a temporary employee is eligible for pension. He further argued that
after successful completion of probation, he is deemed to be confirmed. He was later sent on deputation to International Airports Authority of
India from 08.07.1975 and absorbed permanently on 01.09.1977. Therefore having put in more than the requisite 10 years of continuous service
to qualify for pension, the petitioner is eligible for pension. The learned counsel placed reliance upon the judgment of the Hon''ble Apex Court in
Union of India (UOI) and Others Vs. Tarsem Singh, , wherein the Hon''ble Apex Court has held that the claim for pension is a continuing cause of
action. The learned counsel also placed reliance upon the judgment reported in PRADUMAN KUMAR JAIN vs. UNION OF INDIA [ 1994-II
L.L.N. 446] and argued that once having been appointed against permanent vacancy and upon successful completion of period of probation,
petitioner shall be deemed to have been confirmed, and assailed the order of the Tribunal claiming that the Tribunal ought to have allowed the
Miscellaneous Application and also the claim of pension.
Per contra, the learned Senior Panel Counsel for respondents 2 and 3 argued that there is enormous delay in claiming pension and that the
petitioner was only a temporary employee and was not made permanent and he therefore is not eligible for any pension. Further, he argued that the
petitioner had only put in 10 years, 9 months and 17 days of service and not 13 years, and that he is eligible only for gratuity and appropriate
entries were also made in the service records. The learned counsel also submitted that the Tribunal can entertain any application only if the cause of
action arose within the preceding three years before the Constitution of the Tribunal and therefore the Tribunal has no jurisdiction and was right in
rejecting the Miscellaneous Application as well as the Original Application.
Upon considering the facts and circumstances of the case and the arguments of the learned counsel for the petitioner and the learned Special
Panel Counsel for respondents 2 and 3, it is clear indubitably the petitioner was appointed on 20.11.1964 in a permanent vacancy. The
Memorandum dated 07.11.1964 clearly states that the petitioner was appointed on probation for two years. By a declaration and order in No.
8(11)68/MCC/EIII/8305 dated 06.12.1968, the work of the petitioner was found satisfactory and since his conduct and character was good, he
was made quasi-permanent with effect from the said date. However, on the successful completion of Probation of two years, unless otherwise
communicated, the services of the petitioner should be deemed to have been made permanent and the same is deemed to be regularised from the
date of original appointment. If the petitioner fails to work to the satisfaction of the fourth respondent, his services would have been terminated or
the period of probation would have been extended. It is not the case here. Subsequently, the petitioner was sent on deputation to International
Airports Authority of India and worked till 30.08.1977. Until, the permanent absorption in International Airports Authority of India with effect
from 01.09.1977, the petitioner can only be termed as the employee of the fourth respondent.
Now the question is, having completed nearly 13 years of service in the fourth respondent Department, whether the petitioner is eligible for
pension.
Rule 2(ii) and (iii) of the Central Civil Services (Pension) Rules, 1972 is as follows:
2(ii).Confirmation is delinked with availability of permanent vacancy in the grade. In other words, an officer who has successfully completed the
probation may be considered for confirmation.
(iii) Since all the persons who complete probation in the first appointment will be declared as permanent, the present distinction between permanent
and temporary employees for grant of pension and other pensionary benefits will cease to exist.
As per Rule 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
Upon reading the above Rules, it is evident that even a temporary employee is eligible for pension if he has put in the qualifying service. Rule
49(3) enables an employee to seek pension provided he had put in a service of not less than 10 years.
In the instant case, as stated above, the petitioner was appointed against a permanent and pensionable post. He had successfully completed the
period of probation, though the term used is quasi-permanent and was also awarded increment in pay. The service records of the petitioner reveals
that not only was he made permanent, but was also on the rolls of the fourth respondent till 07.06.1978 and the entries have been made by the
officers of the fourth respondent. Even in paragraph 6 of the counter affidavit, the fourth respondent has admitted that the petitioner has put in 10
years, 9 months and 17 days of service. Nevertheless, as pointed out earlier, the petitioner has in fact put in above 12 years and 9 months of
service and is therefore eligible for pension even if specific orders of confirmation are not communicated. In view of the specific rules enabling even
a temporary employee who has put in above 10 years of service to seek pension, any memo or entry in the service register cannot curtail the rights
provided under the statute.
Now coming to the point of limitation, normally when a person has failed to exercise his right in time and approaches the Court after a long
delay, the Courts would refrain from granting any relief. However, the reason of latches cannot be made applicable strictly in matters relating to
service, if the cause of action continuous. As rightly contended by the learned counsel for the petitioner, the non-payment of pension is a continuing
wrong and gives rise to a continuing cause of action. The Hon''ble Apex Court following the earlier judgments in M.R. Gupta Vs. Union of India
and others, and Shiv Dass Vs. Union of India (UOI) and Others, held in the case of UNION OF INDIA AND OTHERS vs. TARSEM SINGH [
2008 (2) SCC (L & S) 765] as follows:
To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a
writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of
injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected
several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For
example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim state and doctrine of
laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to
recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the writ petition.
The ratio in the above decisions have also been followed by a Division Bench of this Hon''ble Court in the case of R. Subramaniam vs. Central
Administrative Tribunal and Others. The Tribunal has failed to consider the above proposition of law. Therefore, the Tribunal would have
jurisdiction to entertain the application as the grievance of the petitioner is against a continuing wrong and the bar u/s 21(2) of the Administrative
Tribunal Act is not applicable in the present facts and circumstances of the case. The application to waive the statutory waiting period was made
on 20.06.2011. The final orders were passed on 22.08.2012. Therefore, on the date when the orders were passed, the application in M.A. No.
408 of 2011 had in fact become infructuous and the Tribunal ought to have heard the case on merits by considering the relevant rules, which the
Tribunal has failed to do. As we have already gone into the merits of the claim, there is no point in remanding the matter to the Tribunal for fresh
consideration on merits.
The predilection of a common man in seeking a Government job over a private job despite the fact that the latter could offer lucrative pay is
job security, standardised pay and periodical increments without discrimination and terminal benefits including pension. In the instant case, the
petitioner who is now aged 72 years had put in satisfactory and qualifying service in the Government for nearly 36 years. Therefore, he is entitled
for the pension as sought by him for the period of service under the fourth respondent. However, considering the facts and circumstances and in
consonance with the judgments of the Hon''ble Apex Court, we hold that the petitioner is entitled to arrears of pension only for 3 years preceding
the date of filing of Original Application.
In the result, the orders of the Central Administrative Tribunal in M.A. No. 408 of 2011 and O.A. No. 1008 of 2012 dated 22.08.2012 are
set aside. The fourth respondent shall treat the claim of arrears from the date of filing of Original Application and calculate the pension of the
petitioner on pro-rata basis and disburse the arrears for the period preceding three years from the date of filing the Original Application to till date
of payment. If the petitioner had received gratuity for the said period, the same has to be refunded by him with 9% percent interest per annum. If
the gratuity has not been received, the arrears has to be paid within 3 months from the date of the receipt of the copy of this order. The fourth
respondent shall continue to pay the pension to the petitioner as per law every month. With the above directions, the Writ Petition is allowed. No
costs.