Siya Ram vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-

“(i) The Hon’ble Tribunal may graciously be pleased to quash and set aside the impugned order dated 24.05.2019 (Annexure A-1) passed by the respondent NO. 4 and direct the respondents to extend the benefits of GPF and old Pension Scheme from the date of his regularization in service in MTS Group ‘D’ post.

(ii) The Hon’ble Tribunal may further be pleased to refund the contribution deducted under new pension scheme and adjust against the General Provident Fund under old pension scheme.

(iii) Any other it or order or direction which the Hon’ble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued in the interest of justice.

(iv) Cost of the application may also be awarded.

(v) The Hon’ble Tribunal may kindly be pleased to direct the respondents to count entire daily wage service of applicant (w.e.f. 1991, 1995, 1996, 1999, 2001, 2002, 2003 and 2004) for counting qualifying service for pension and other pensionary benefits and he will be deemed to be in Government service prior to 01.01.2004.

(vi) The Hon’ble Tribunal may further be pleased to direct the respondents to grant the benefits of old pension scheme w.e.f.2003 as per notification dated 21 August 1997 (Annexure A-3) as it has been granted to Dwarika Prasad as well as others.

Brief facts of the case are that the applicant was engaged as Anti Malaria Lascar on casual basis and worked in 1991, 1995, 1996, 1997, 1999 & 2000 and on calling names from Employment Exchange Agra in1995, he again reengaged in the month of June 2000 to November 2003. He was granted temporary status on 06.06.2002 after the direction of this Tribunal passed in OA No. 225/2001 on 28.05.2001 and granted pay scale, increments and other admissible allowances as admissible to temporary employee. On completion of four years regular service, applicant was regularized on the post of MTS Group ‘D’ on 17.11.2005 and allowed Service Number 59279-B and GPF was regularly deducted from the salary of the applicant. Since January 2019, respondents’ authorities converted the status of applicant from old pension scheme to new pension scheme and allotted a new NPS No. Railway Board issued clarification vides letter dated 09.01.2017 (Annexure No.A-8) regarding GPF and pension benefits to casual labourers with temporary status regularized after 01st April 2004. Against arbitrary withdrawal from GPF and Old Pension Scheme, applicant moved an application on 13.04.2019 (wrongly dated 13.10.2019), which was decided by the respondents vide order dated 24.05.2019. The aforesaid order is assailed in this OA.

I have heard Shri Shiv Kumar, learned counsel for the applicant and Shri Chakrapani Vatsyayan, learned counsel for the respondents.

Learned counsel for the applicant has relied upon the decision of Hon’ble High Court of Punjab and Haryana at Chandigarh passed in CWP No. 2371 of 2010 (Harbans Lal Vs. The State of Punjab and others) decided on 31.8.2010 O.A. in which it has been observed that “respondents are directed to treat the whole period of work charge service as qualified service for pension because according to clarification dated 30.5.2008 (Annexure P-3) the new defined Contributory Pension Scheme would be applicable to all those employees, who have been working prior to 01.01.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably within a period of three months from the date of receipt of copy of this order. No order as to costs”. He further argued that the aforesaid case of Harbans Lal (supra) has been upheld by Hon’ble Supreme Court in Special Appeal to Appeal (Civil) 17901 of 2011 decided on 318.2010. Learned counsel for the applicant argued that applicant worked in 1991, 1995, 1996, 1997, 1999 & 2000 and on calling names from Employment Exchange Agra in1995, he again reengaged in the month of June 2000 to November 2003, hence as per aforesaid judgment of Hon’ble High Court of Punjab and Haryana at Chandigarh, his old casual service would be counted for regularization of his service. He further argued that temporary status enjoyed by the casual labourers as per the 1993 scheme anterior to their regularization 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 existence. Therefore, the stand taken by the respondents that the applicant having been appointed as Group D employee only after 1.1.2004 and is not entitled to the benefits of CCS (Pension) Rules, 1972 is unsustainable. Learned counsel also relied upon the orders and judgment of similarly situated cases of Shri Birendra Singh and another Vs. Union of India and others decided in OA No. 4147 of 2012 by the CAT, Principal Bench, New Delhi on 28.5.2014, Deen Bandhu Singh Vs. Union of India and others in OA No. 4569 of 2013 decided on 23.04.2015 and Suresh Dutt Tiwari Vs. Union of India and others in OA No. 315/2013 decided on 8.5.2015 by CAT Lucknow Bench. In all cases Tribunals have held that casual labour granted temporary status prior to 01.01.2004 but regularized after 31.12.2003 would be covered under the GPF and old Pension scheme.

On the other hand, learned counsel for the respondents argued that applicant is not eligible from NPS to old GPF and pension scheme since applicant was engaged as SAMLS under Seasonal Anti Malaria Lascars (Grant of Temporary Status & Regularization) Scheme of IAF, 1997 and whereas only those casual labourers were to be taken into account for transfer to old GPF and pension scheme who were labourers andcovered under the ‘Casual Labourers (Grants of Temporary Status & Regularization) Scheme of GOI, 1993’.

In rebuttal, learned counsel for the applicant contended that one Dwarika Prasad, who was also granted temporary status under Seasonal Anti Malaria Lascars (Grant of Temporary Status & Regularization) Scheme of IAF, 1997 has been granted the benefit of GPF and old pension scheme, hence submission of learned counsel for the respondents that applicant was granted temporary status under Seasonal Anti Malaria Lascars (Grant of Temporary Status & Regularization) Scheme of IAF, 1997 and is not liable to be granted the benefit of GPF and old pension scheme is not acceptable. It is also argued that similar and identical benefits should be given to all employees, who comes under that category, hence the submission of learned counsel for the respondents regarding grant of benefit of GPF and old pension scheme is also not acceptable.

I have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.

From the perusal of impugned order dated 24.05.2019, it is evident that respondents have clarified that applicant is not entitled for old GPF and pension scheme as he was not regularized under Casual Labourers (Grants of Temporary Status & Regularization) Scheme of GOI, 1993. In this regard, it is clarified that Dwarika Prasad, who was also granted temporary status under Seasonal Anti Malaria Lascars (Grant of Temporary Status & Regularization) Scheme of IAF, 1997 has been granted the benefit of GPF and old pension scheme. Hence submission of learned counsel for the respondents that applicant is not entitled for grant of old GPF and pension scheme is rejected. I am of the view that identical benefits have to be given to the applicant as has been given to Dwarika Prasad.

It is relevant to mention here that the individuals who have been regularized after the introduction of New Pension Scheme will be governed by the same norms, whereas applicant is relying upon the decision of this Tribunal in the OA No. 07/2019 Ram Sumer Vs. Union of India decided on 23.03.2023 in which the Tribunal has held that Casual Labourers, who attained temporary status prior to 1.1.2004 but regularized after 1.1.2004, they covered under the old pension scheme. In addition to that O.A. No. 214/2016 decided by CAT, Earnakulam Bench on 23.3.2017 (N.R. Sajan Vs. UOI and others), coordinate bench of this Tribunal has held that “the temporary status enjoyed by the casual labourers as per the 1993 scheme anterior to their regularization 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.”

In the case of Kamaluddin Vs. State of U.P. (Writ A No. 17042 of 2021) decided on 6.12.2021, Hon’ble Allahabad High Court has held as under:-

“In view of the aforesaid fact, this court finds that the reason assigned by the authority concerned in rejecting pensionary benefit to petitioner based upon the Govt. order dated 17.7.2019 according to which an employee appointed subsequent to 1.4.2004 shall be governed by New Pension Scheme is misconceived and not sustainable in law as the appointment of the petitioner is 14.6.1989 which is prior to 1.4.2005. Thus, for the reasons given above, the impugned order so far as it relates to petitioner is set aside and a mandamus is being issued to respondent No. 2- Nagar Ayukt, Nagar Nigam Prayagraj to grant pensionary and other retiral benefits to the petitioner within a period of three months from the date of production of certified copy of this order.”

In the case of Anand Mohan Vs. UOI and others (O.A. No. 292/2020 decided on 6.8.2020, CAT Allahabad Bench had observed as under:-

“5. Learned counsel for the applicant would further find support from the judgment of the Hon’ble High Court of Rajasthan in the case of Puranmal Sharma (supra), as also the DOPT memorandum No. 49014/2/ 2014-Estt (C) dated 28.07.2016, which unambiguously hold that the benefit of Old Pension Scheme and General Provident Fund is admissible to casual workers under the scheme of 1993 even if they have been regularized after 1.1.2004.

Learned counsel for the respondents would contend that the benefit of Old Pension Scheme would be admissible only if it is established that the applicant had attained temporary status prior to 1.1.2004 and this fact has not so far been admitted. He draws attention to disciplinary proceedings against the applicant which are set to have met with removal from service. However, he also informs that subsequent to an appeal, this punishment was reduced to a lower stage in time scale. This statement itself indicates that the applicant was drawing a regular pay scale prior to 1.1.2004, hence he had attained temporary status.

Learned counsel for the respondents agrees that in case the vacancy against which the applicant was regularized, had accrued prior to 1.1.2004 and the applicant had attained temporary status, there is a merit in re-examining the case and re-ascertaining the facts. Hence 5 being a question of fact the case could be reviewed by the respondents if the facts point to that direction.

Having heard learned counsel for the parties, I am of the view that the applicant has established his case for coverage under the Old Pension Scheme as documents on record prove that he had attained the temporary status prior to 1.1.2004; was in receipt of a regular pay scale; had subscribed to General Provident Fund and hence meets all the requirements to be awarded benefits of Old Pension Scheme. In addition, a catena of judgments passed by different Benches of CAT and the Hon’ble High Court of Rajasthan amply establish the case of the applicant to be covered under the Old Pension Scheme.

In view of the detailed position obtained above, this O.A. is allowed and the respondents are directed to pass appropriate order granting the benefits of Old Pension Scheme to the applicant within a period of eight weeks from the date of receipt of a certified copy of this order. Accordingly, the impugned order dated 19.11.2018 (Annexure A1) stands quashed. No order as to costs.”

For the forgoing reasons and in the light of the case laws referred above, the court is of the view that applicant is entitled for old pension scheme as he has been granted temporary status w.e.f. 06.06.2002.

Accordingly, O.A. is allowed. Impugned order dated 24.05.2019 is quashed. Respondents are directed to grant the benefit of GPF and old pension scheme to the applicant and release the arrears, if any, with 6% simple interest from the date it became due till the actual payment, treating him in the old pension scheme. This exercise shall be carried out within a period of two month from the date of receipt of certified copy of this order. No order as to costs.