Tijju vs Union Of India & Ors

Om Prakash VII, Member (J)

The applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the prayer to direct the respondents to pay the petitioner the benefit of old pension rules and the benefit of monthly pension, DCRG , commutation , insurance etc.. with interest @ 12% per annum.

The brief facts of the case are that the applicant was working with the respondents as casual labour since 2002 and was screened for regularization in which he was found fit. Soon thereafter, applicant was appointed in regular capacity w.e.f 24.2.2005 and continued to work till his retirement i.e. 31.10.2016 in pay scale of Rs. 5200-20200 + G.P. 1800/-. In regular capacity, applicant worked w.e.f.24.2.2005 to 31.10.2016 i.e. about 11 years. After retirement, he was not paid any kind of benefit under old pension rules

Railway Board issued clarification vide letter dated 29.10.2014 regarding applicability of old pension scheme to substitutes who attained temporary status prior to 1.1.2004 but regularized after 1.1.2004, which provides that “Substitutes who attained temporary status prior to 1.1.2004 but regularized after 1.1.2004, they covered under the old pension scheme.” Applicant superannuated on 31.10.2016 but pension , gratuity , leave encashment and commutation of pension were not paid to the applicant. Learned counsel for the applicant has relied upon the decision passed in O.A. No. 214/2016 by CAT, Earnakulam Bench on 23.3.2017 (N.R. Sajan Vs. UOI and others), in which it has been observed 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. “

Per contra, learned counsel for the respondents submitted through their counter reply that applicant was appointed as casual labour on 25.10.1976 and screened on 8.5.2003 for Group D vide letter dated 19.11.2003. He was appointed on the post of Gangman on 24.2.2005. The employees appointed on or after 1.1.2004 are covered under New Pension Scheme and settlement payment has been done accordingly to his family. The Railway Board vide letter dated 3.3.2020 had issued direction for coverage under Central Civil Services (Pension) Rule, 1972 (Old Pension Scheme) in place of National Pension System of those employees whose selection for appointment was finalized before 1.1.2004 but who joined Govt. service on or after 1.1.2004. A time was given to the employees for submitting their options for National Pension System up to 31.5.2020 vide Railway board letter dated 3.3.2020. The cut off date 31.5.2020 was extended up to 31.5.2021 for exercise of their option. The applicant has been retired on 31.10.2016 and any option for coverage under Central Civil Services (Pension) Rules, 1972 (Old Pension Scheme) in place of National Pension System has not been exercised by the applicant up to 31.5.2021. Hence, the benefit for coverage under Old Pension Scheme cannot be given to the applicant.

We have heard the learned counsel for the parties and have gone through the entire record.

Applicant is relying on the circular dated 29.10.2014 of Railway Board, which clearly provides that Substitutes 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 in 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.”

It is pertinent to mention here that applicant was engaged in the year 2002. He got temporary status prior to 1.1.2004. New Pension Scheme was implemented w.e.f. 1.1.2004. Applicant retired in the year 2016. Option for Old Pension Scheme was asked for in the year 2020. The plea taken by the learned counsel for respondents that option given to the applicant was not availed by him. Thus, applicant cannot be extended the benefit of old pension scheme, is not acceptable. Since the applicant has been retired in the year 2016. Nothing is on record to show that actually he was intimated for giving option of old pension scheme in the year 2020.

For the forgoing reasons and in the light of the case laws referred above and also in the light of Railway Board, Circular dated 29.10.2014, the court is of the view that applicant is entitled for old pension scheme as he had worked as Casual Labour since 2002 and had been screened on 8.5.2003 vide letter dated 19.11.2003 i.e. before 1.1.2004 and appointed on 24.2.2005 on the post of Gangman.

Accordingly, O.A. is allowed. Respondents are directed to grant retiral and pensionary benefits to the applicant, along 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 one month from the date of receipt of certified copy of this order.

No order as to costs. All MAs pending in this O.A. also stands disposed off.