Neutral Citation No. - 2024:AHC:131406-DB
Reserved Chief Justice's Court Case :- WRIT - A No. - 11132 of 2022
Petitioner :- Avinashi Prasad
Respondent :- Union of India And 3 Others
Counsel for Petitioner :- Alok Kumar Yadav,Jigyasa Singh
Counsel for Respondent :- A.S.G.I.,Sheetla Prasad Gound
Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J.
(Per: Arun Bhansali, CJ)
1. This writ petition is directed against the order dated 31.03.2022 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. No. 331 of 2010, filed by the petitioner, whereby the Original Application filed by the petitioner seeking relief pertaining to promotion on the basis of seniority fixed with reference to 03.02.1990 with all consequential benefits and allow the petitioner benefit of passes and pension scheme and other pensionary benefits as provided under the Railway Services (Pension) Rules, 1993 as he was screened in 1989 and empanelled in the panel dated 03.02.1990 has been dismissed.
2. Before the Tribunal, it was submitted on behalf of the petitioner that while majority of the reliefs sought by him have been granted, the relief pertaining to pension is yet to be granted by the respondents.
3. The petition has a chequered history. The petitioner was engaged as casual labour w.e.f. 16.04.1980. The respondents initiated process to regularize the services of casual labours, however, they left out the name of the petitioner and certain other persons. Feeling aggrieved, O.A. No. 944 of 1991 was filed.
4. A response was filed indicating that inadvertently, the names of the applicants therein were left out, which the respondents agreed to include, based on which the O.A. was disposed of on 16.02.1993.
5. The regularization was denied on the ground that for a certain period the petitioner had worked as a casual labour he was minor. O.A. No. 1057 of 1997 was
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filed, which came to be decided on 04.01.2001 requiring the petitioner to make representation before the respondents. The representation came to be rejected.
6. Another O.A. 1479 of 201 was filed, which came to be decided on 21.09.2004 whereby the order rejecting the representation was set aside and the respondents were directed to renew/regularize/ screen the petitioner considering his period of service both as minor as well as major.
7. The respondents filed writ petition no. 10811 of 2005 against the order dated 21.09.2004, which was dismissed by this Court on 20.09.2005.
8. When the order dated 21.09.2004 passed by the Tribunal was not implemented, Contempt Application No. 6 of 2005 was filed, which came to be disposed of on 05.04.2007 granting time to the respondents for compliance of the judgement dated 21.09.2004.
9. Another writ petition no. 22728 of 2007 was filed by the respondents, which came to be decided on 28.09.2007.
10. Pursuant to the judgement dated 28.09.2007 passed in Writ Petition No. 22728 of 2007, the respondents absorbed the petitioner by order dated 10.12.2007 on the post of Trackman (Group -'D' post). The petitioner claiming seniority filed O.A. No. 731 of 2008, which came to be disposed of by order dated 29.09.2008 requiring the respondents to take a decision in the matter. The respondents by order dated 04.03.2009 took a decision that seniority of the petitioner would be considered with effect from 03.02.1990 and he would be accorded promotion.
11. Pursuant to the said order, the petitioner was accorded promotion on the post of Trackman, Tea-man, Senior PWS and Senior Section Engineer. The petitioner on account of grant of seniority and promotion claimed that he may be given benefit of pension as well under the Old Pension Scheme. When the same was not granted, he filed the present O.A. No. 331 of 2010.
12. The O.A. was contested by the respondents by filing reply to which a rejoinder was filed.
13. The Tribunal, after hearing the parties, came to the conclusion that the claim made by the petitioner that respondents should pass specific order with respect to
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his entitlement of pension is not worthwhile at this stage as the applicant/petitioner is still in service and order with respect to payment of pension is passed at the time of superannuation or just prior to that.
14. The Tribunal further observed that as the petitioner has subscribed the new pension scheme, which has come into operation with effect from 01.04.2004, there was no question of passing a separate order with respect to entitlement of pension to the petitioner. The Tribunal was also of the opinion that the petitioner should be thankful that he has been accorded the benefit of a regular employee unlike hundreds of others who are litigating each and every day without getting such relief. Consequently, the O.A. was dismissed.
15. Learned counsel for the petitioner made submissions that the order passed by the Tribunal with regard to denial of pension under the old scheme to the petitioner is wholly unjustified.
16. Submissions were made that admittedly the petitioner was accorded benefit of seniority and promotion with effect from 03.02.1990 and the same has been given effect to. Only because while according appointment to the petitioner after several rounds of litigations by order dated 18.01.2008, he was required to subscribe to the new pension scheme, which, in the meanwhile, came into force with effect from 01.04.2004, he cannot be deprived of the benefit of old pension scheme in view of the fact that he has been accorded all the benefits with effect from 03.02.1990 and therefore, the order impugned deserves to be set aside and the respondents be directed to accord benefit to the petitioner in accordance with law.
17. Learned counsel for the respondents supported the order impugned. Submissions were made that admittedly as the petitioner has subscribed to the new pension scheme on his regularization, he cannot seek benefit of old pension scheme and therefore, the Tribunal was justified in rejecting the case of the petitioner and the present writ petition also deserves dismissal.
18. We have considered the submissions made by counsel for the parties and have perused the material available on record.
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19. So far as the observations made by the Tribunal that relief claimed by the petitioner with respect to his entitlement for pension is not worthwhile at this stage as the applicant is still in service and order with respect to payment of pension is passed at the time of superannuation or just prior to that, is concerned, the same cannot be sustained inasmuch as once the respondents while according appointment to the petitioner have made the new pension scheme applicable to him, the petitioner was required to question the validity of the said action immediately and not wait till his retirement and then question the same, as such, the said observations made by the Tribunal cannot be sustained.
20. As noticed here-in-before, the matter has a long chequered history, wherein the petitioner was made to approach the Tribunal on five occasions and against two orders, the respondents had approached this Court and again he was made to approach the Tribunal on sixth occasion by filing the present Original Application.
21. The facts are not in dispute, wherein the petitioner was initially appointed as a casual labour on 16.04.1980, which aspect is fortified from Annexure-6 to the writ petition issued by the Assistant Personnel Officer (Mech.), N.C.R., Allahabad, which pertain to screening of ex-casual labour of Allahabad Division.
22. After several rounds of litigations, by order dated 18.01.2008 the petitioner was appointed as temporary Trackman in Grade - 2610 - 3540 in implementation of the order passed by the Tribunal.
23. When the petitioner sought benefit of seniority and promotion and again approached the Tribunal, which required the respondents to decide his representation, by order dated 29.09.2008 (Annexure-8) the following order was passed on 04.03.2009 :
" विषयः माननीय केन्द्रीय प्रशासविनक ऩ्यायधिकरण के आदेश सं० 731/2005 विदनांक 29.9.2008 श्री अविनाशी प्रसाद बनाम भारत सरकार के अनुपालन के सम्बं में। -=-
सन्दभ2ः - आपका प्रत्याेदन विदनांक 09.10.2008
-=-
माननीय न्यायालय द्वारा पारिरत आदेश विदनांक 29.9.08 का पालन करते हुए म०र०ेप्र० महोदय ने आपके मूल आेदन का विस्तार पू2क गहन अध्ययन विकया तथा सभी सम्बन्धिन्त तथ्यों का पता लगाया। तथ्यो को देखते हुये यह विविदत होता ह ैविकः-
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1. आपको ग्रुप - डी के पनैल मे ट्र ैक मैन के पद पर माननीय न्यायालय क् आदेश संख्या 1479/2004 विद० 21.9.04 एं सी०सी०पी०न० 6/2005 के पश्चात विनयवुिM दी गई। आपकी स्क्रीनिंनग 89 मे हुई एं पैनल विद० 03.02.90 को विनकाला गया।
2. आपका सहा०म०अभिभ०/अलीगढ़ के पत्र सं० ई० /10/विनयवुिM विद० 19.10.08 के द्वारा मेधिडकल पास करने के बाद औपचारिरक विनयवुिM की गई।
3. आपकी ट्र ैक मैन पर विनयवुिM विनयमानुसार की गई ह।ै
4. अब आपको सीविनयरिरटी एं प्रमोशन केल सिसविल इजंी०विभाग मे विद० 03.02.1990 से ही रिरष्ठता के अनुसार विमलेगा।
5. आपके साथ स्क्रीन विकये गये कम2चारी सिजन्हें दसूरी ब्रांज एलाट की गई है उनकी सीविनयरिरटी एं प्रमोशन उसी ब्रांच की सीविनयरिरटी के अनुसार ही होता ह।ै
6. आपकी सीविनयरिरटी एं प्रमोशन जो भी आपको देय होगा, सिसविल इजंी०विभाग में विनयमानुसार विदया जायेगा।
इस तरह आपके आेदन का पूण2 विनपटारा माननीय केन्द्रीय प्रशासविनक न्यायधिकरण के आदेशानुसार विकया गया ह।ै
रिरष्ठ मण्डल अभिभयन्ता/चतुथ2
उ०म०र०े, इलाहाबाद।"
(emphasis supplied)
24. A perusal of the above would reveal that it was inter-alia provided that the petitioner would be accorded seniority and promotion with effect from 03.02.1990 as per his seniority in Civil Engineering Department.
25. Pursuant to the said order, he was accorded promotions taking his date of appointment as 03.02.1990. However, as the petitioner was accorded appointment by order dated 18.01.2008 and by then the new pension scheme had been introduced with effect from 01.04.2004, as such, apparently he was made to subscribe to the new pension scheme to which he subscribed.
26. The petitioner then sought the respondents for according benefit of/decide his entitlement to the old pension scheme in tune with the fact that he was accorded benefit of seniority and promotion with effect from 03.02.1990. When the same was not granted, the present Original Application has been filed.
27. The Tribunal rejected the Original Application only on the ground that the petitioner had subscribed to the new pension scheme when he was accorded appointment in the year 2008. The mere fact that though the petitioner was entitled to appointment along with others with effect from 03.02.1990, which was not accorded to him and after several rounds of litigations, at last the same was accorded to him in the year 2008 and on further litigating he was given benefit of seniority and promotion with effect from 03.02.1990, apparently he cannot be
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deprived of the benefits to which he would have been entitled to in case he was accorded appointment in time along with those similarly situated i.e. on 03.02.1990. On the date from which the petitioner has been accorded benefit of seniority and promotion, admittedly the old pension scheme was in vogue as the new pension scheme was introduced only with effect from 01.04.2004 and therefore, he was entitled to be governed by the old pension scheme only.
28. The fact that when he was accorded appointment in the year 2008 he subscribed to the new pension scheme, apparently cannot militate against petitioner's entitlement to get the benefit of old pension scheme inasmuch as once the appointment was being accorded after 18 years of his entitlement and after filing of several Original Applications before the Tribunal, his denial to subscribe to the new pension scheme at that stage would have, going by the conduct of the respondents, deprived him of the said appointment as well.
29. Immediately, on getting appointment he has sought relief pertaining to seniority, promotion and pension. While seniority and promotion have been accorded to him, the relief pertaining to pension was not responded and when the Original Application was filed, the same was rejected by the Tribunal on account of his subscribing to the new pension scheme, which aspect cannot be sustained.
30. The above aspect can be examined from another angle, wherein while for the purpose of seniority and promotion of the petitioner in service record the relevant date is 03.02.1990, while for the purpose of pension, the same is taken as date of appointment i.e. 18.01.2008, which in terms is contradictory and cannot be sustained.
31. The observations made by the Tribunal that the applicant/petitioner should be thankful that he has been accorded the benefit of a regular employee unlike hundreds of others, who are litigating each and every day before the Tribunal without getting such relief, to say least are wholly uncalled for. The observations give a feeling as if the Tribunal while passing the order in favour of the applicant/petitioner and/or the respondents in according appointment under the orders of the Court have extended some favour to the petitioner. Whatever orders are passed by the Tribunal/Court are based on the entitlement of the parties in
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accordance with law and there is nothing to be thankful about the same. However, we leave the said aspect at that.
32. In view of the above discussions, the writ petition is allowed. The order passed by the Tribunal dismissing the Original Application is set aside. The Original Application filed by the petitioner is allowed, the respondents are directed to accord benefit of old pension scheme and other pensionary benefits as provided under the Railway Services (Pension) Rules, 1993 to the petitioner with all consequences, in accordance with law.
33. In case, for according the said benefit, the petitioner is required to take any action/fill up certain forms etc./deposit any amount, the same shall be specifically informed by the respondents to the petitioner, which would be duly complied by him. Needful be done by the respondents within a period of eight weeks from the date of this order .
34. No order as to costs.
Order Date :- 13.08.2024nd (Vikas Budhwar, J.) (Arun Bhansali, CJ)
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